Ediscovery in China: Traditions, Rules and Customs You Need to Know

Ediscovery in China

On June 22, Kroll Ontrack managing director and APAC ediscovery expert Kate Chan will discuss the Chinese ediscovery landscape, so you will be prepared when you need to know the traditions, rules and customs when faced with a regulatory investigation or cross-border litigation.

Register today to learn about Ediscovery in China!

Ediscovery in China: Traditions, Rules and Customs You Don’t Know

The Chinese legal landscape is often seen as daunting and secretive; a laborious task for an American legal professional to master. Specifically, Chinese data protection and privacy laws in particular provide a challenge to any international ediscovery project. Because of the substantial economic growth resulting in higher volumes of data in China, as well as the expanding complexities of ediscovery law, a practitioner that is not familiar with Chinese law can find themselves at a significant disadvantage, especially when faced with a regulatory investigation or cross-border litigation.

To help you meet these unique challenges head on, we’ve enlisted seasoned APAC ediscovery expert Kate Chan to offer the information and strategies you need to manage Chinese ediscovery.

Specifically, this webinar will cover:

  • The implication of China’s regulatory framework on ediscovery
  • Recent developments in Chinese ediscovery practices
  • Tips for managing the unique issues related to managing ESI in China
  • Ways Chinese ediscovery differs from ediscovery practices in other APAC countries

Click here to get more information about this webinar and to register.

Kate Chan is a New York attorney who started practicing on Wall Street. She is a native of Hong Kong and is fluent in both Mandarin and Cantonese. She is the Regional Managing Director of Kroll Ontrack’s Legal Technologies unit in Asia Pacific.

May 2016 Ediscovery Case Summaries

May 2016 ediscovery case summaries

Ignorance Not Bliss When Destroying Digital Evidence
NFL Mgmt. Council v. NFL Players Ass’n., 2016 WL 1619883 (2nd Cir. Apr. 25, 2016)

Electronic Data Too Difficult to Assemble?  Too Bad.
Labrier v. State Farm Fire & Cas. Co., 2016 U.S. Dist. LEXIS 61246 (W.D. Mo. May 9, 2016)

You Can’t Delete and You Can’t “Hide”
Thurmond v. Bowman, 2016 WL 1295957 (W.D.N.Y. Mar. 31, 2016)

Court Holds High Bar for Imposing Sanctions under Rule 37(e)
Orchestratehr, Inc. v. Trombetta, 2016 WL 1555784 (N.D. Tex. Apr. 18, 2016)

Litigants Need to Prove Existence of Missing Data for FRCP 37(e) Sanctions
FiTeq Inc. v. Venture Corp., 2016 WL 1701794 (N.D. Cal. Apr. 28, 2016)

Embracing New Computer Forensics Paradigms

computer forensics

Computer forensics is a fast-changing industry. New mobile devices, increased use of the cloud to store data and social media all present new challenges to collecting data. It’s not enough to limit a data collection to files and emails anymore. Smartphones, tablets, email, instant messaging platforms, traditional file shares and more all need to be included in a collection. And computer forensics experts must keep up-to-date on industry-accepted practices for collecting each type of data.

  • How does each technology work?
  • How do users interact with said technology?
  • Where is the data stored?
  • And how is the data stored?

Those are all questions a computer forensics expert needs to be prepared to answer when investigating a cyber security event or preparing for litigation.

Check out ‘Data Collection: Embracing New Technology and Abandoning Old Paradigms‘ in this issue of Peer to Peer Magazine to understand more about changing trends in computer forensics and collections.

Survey says… New trends from corporate in-house counsel

corporate In-house counsel

Recently, Kroll and Kroll Ontrack surveyed over 170 corporate in-house counsel to share their perspectives on modern legal challenges facing organizations. We asked about some of the most pressing issues – from big data and compliance to fraud and cyber security – to uncover some striking corporate counsel trends.

Benchmark your company’s legal risks: download the report!

These were just some of the questions asked:

  • What are the most pressing legal issues facing your corporation?
  • Does your company have a data breach or incident response plan in place?
  • Does your corporation have an information governance program in place?
  • How frequently do you discuss data security issues with your organization’s head of technology?

The key findings in this 2016 Corporate Risk Survey indicate that organizations are making noteworthy strides as the result of new risks facing the enterprise. Nevertheless, the survey also reveals that organizations have additional room to evolve if they seek to combat these modern risks in an efficient, cost-effective manner. Some of the in-house counsel findings include:

  • Only 41% report that their company’s Incident Response plan is regularly updated and tested.
  • 20% indicate that they never discuss data security issues with their organization’s head of technology.
  • 73% believe that they do not have an effective Information Governance (IG) program in place to deal with skyrocketing data volumes.

Want to see how your organization compares? Click here to answer seven of the questions we asked in-house counsel, then download a copy of the report summarizing key findings.

April 2016 Ediscovery Case Summaries

May 2016 ediscovery case summaries

Failure to Stop Automatic Deletion of Text Messages Does Not Merit Sanctions
Living Color Enters., Inc. v. New Era Aquaculture, Ltd., 2016 WL 1105297 (S.D. Fla. Mar. 22, 2016)

Court Denies Plaintiffs’ Motion to Compel the Production of Documents from Defendant’s Overseas Manufacturer
Grayson v. Gen. Elec. Co., 2016 WL 1275027 (D. Conn. Apr. 1, 2016)

Court Compels Production of Database for Forensic Metadata Analysis
Thorne Research v. Atlantic Pro-Nutrients, 2016 WL 1122863 (D. Utah Mar. 22, 2016)

Case and Sanctions Dismissed in Light of New Evidence
CAT3, LLC v. Black Lineage, Inc., No. 14 Civ. 5511 (S.D.N.Y. Apr. 4, 2016)

Claims of Lightning Strike and Power Surge Fail to Protect Against Sanctions
InternMatch v. Nxtbigthing, 2016 WL 491483 (N.D. Cal. Feb. 8, 2016)

UK High Court Approves the Use of Predictive Coding in Litigation

UK Predictive Coding

Legal technology providers in the UK have a lot to celebrate as the English High Court recently approved the use of predictive coding for disclosure in litigation.

The judgment, handed down by Master Matthews in Pyrrho Investments Ltd. v. MWB Property Ltd. [2016] EWHC 256 (Ch), gave official judicial authorization for the use of predictive coding in High Court proceedings. Summing up his decision, Master Matthews stated that predictive coding is just as accurate, if not more so than a manual review using keyword searches, mirroring the sentiments shared by Judge Peck’s 2012 opinion in Da Silva Moore v. Publicis Groupe regarding the appropriateness of predictive coding and its potential benefits. Master Matthews also estimated that predictive coding would offer significant cost savings in this particular case and that the possible disclosure of over two million documents done via traditional manual review would be disproportionate and “unreasonable.”

To read a short summary of the judgment, please click here, or read the judgment in full here.

Predictive Coding Goes Global

Predictive coding has become a global phenomenon over the past few years. The United States and Ireland have led the way in giving judicial approval to predictive coding, with Judge Peck’s Da Silva Moore opinion setting the predictive coding tone in 2012. Since then, the United States has continued to adopt the use of predictive coding, with a number of substantive cases further establishing its use. Ireland recently embraced predictive coding as well in the 2015 Irish Bank Resolution Corporation Ltd & ors v. Quinn & ors case holding that, in the discovery of large data sets, technology-assisted review using predictive coding is at least as accurate as, and probably more accurate than, the manual or linear method of identifying relevant documents. Not surprisingly, the Pyrrho judgment in the UK references these cases in detail.

Combatting Predictive Coding Objections

Despite these cases and the ever-increasing sophistication of the technology itself, the UK law community has been somewhat reluctant to make use of the technology, as explored in this study by Kroll Ontrack Legal Consultant and former litigation lawyer Hitesh Chowdhry. In Chowdhry’s white paper, “Rage against the Machine; Attitudes to Predictive Coding Amongst UK Lawyers,” he notes that his study revealed that the main barriers to adopting predictive coding technology were:

  • Risk aversion and mistrust of the technology’s accuracy
  • Belief that predictive coding would have a negative effect on revenue
  • Satisfaction with existing methods and a belief that existing practices offered more accuracy than studies have suggested
  • Insufficient understanding and knowledge of the complex predictive coding process
  • Diffusion among professionals

The UK Pyrrho judgment counters many of the fears uncovered in Chowdhry’s study by stating that the technology is accurate and offers cost savings. The efficiency of TAR and the cost savings offered by predictive coding will undoubtedly be popular with clients and potentially will give a competitive edge in winning work. Hopefully, this ruling will encourage more UK firms to take advantage of the benefits offered by predictive coding.

For more information about this technology, read Kroll Ontrack’s e-book, “Mastering Predictive Coding: The Ultimate Guide.”

Never Second Guess a Second Request

Second Request

Massive mergers are never a simple matter for organizations and their antitrust attorneys. The Second Request process can be a major burden for merging organizations since it requires that companies review, analyze and produce massive volumes of data in what can be a very short amount of time. If that doesn’t already cause panic, keep in mind that failing to fully comply can lead to substantial civil penalties and even the rejection of the merger transaction.

While Second Requests are a daunting task for any antitrust lawyer, my colleagues John D. Pilznienski and Sheldon A. Noel recently discussed the requirements counsel must meet to comply with a Second Request and how utilizing analytics like predictive coding can help simplify the process. The article written by Pilznienski and Noel, “Never Second Guess a Second Request: Leveraging Predictive Coding for Reviewing Documents in Antitrust Matters,” appeared in the March 2016 edition of Digital Discovery & e-Evidence, a Bloomberg BNA publication.

Read the article: Never Second Guess a Second Request

What is a Second Request?

For those of you not intimately aware of the corporate merger process, a Second Request is the issuance of a request by the Department of Justice (DOJ) or Federal Trade Commission (FTC) for “additional information and documentary material relevant to the proposed acquisition.” When corporations intending to merge meet a certain financial threshold, their proposed merger is subject to review by federal antitrust agencies. If the DOJ or FTC determines that more information is needed to ensure that there is no violation of federal antitrust laws during the initial review, they can request more information from the merging corporations. These requests can be extremely broad, requiring extensive resources, time and manpower to collect, process and produce the relevant documents and data.

Second Requests, Ediscovery and Predictive Coding: A Case Study

As discussed in the article by Pilznienski and Noel, in a recent technology sector merger the two companies utilized Kroll Ontrack’s predictive coding technology and review platform to respond to an FTC Second Request. The merger presented a number of hurdles – a large data set, multiple jurisdictions, complicated review guidance based on the document requests and an unexpectedly short production deadline – all of which were easily overcome by leveraging predictive coding. From the approximately 600,000 searchable documents, a random sample of approximately 2,300 documents was generated, sampled at a 95% confidence level and a 2% margin of error.  After applying a variety of review methods, the most relevant documents were reviewed first, aiding the merging companies in meeting the FTC’s deadline and significantly reducing the costs of review.

Be sure to read the full article, Never Second Guess a Second Request: Leveraging Predictive Coding for Reviewing Documents in Antitrust Matters, for a more in-depth discussion on the application of predictive coding to the Second Request process.

April Webinar: Got Data? Analytics to the Rescue!

Got Data Analytics to the Rescue

On April 19, 2016 join Kroll Ontrack experts Cathleen Peterson and Jim Sullivan, along with Kiriaki Tourikis from JP Morgan, as they discuss data analytics as both the lifeblood powering critical business operations and the kryptonite preventing the business from flexing its muscle. When investigations, litigation or compliance matters strike, organizations and their counsel that leverage analytics are more likely to win.

Register for the Data Analytics webinar today!

This session will feature hypothetical scenarios to explain the various analytics tools and how they fit into a case, data breach or investigation. At the end of the session, participants will understand how analytics can help:

  • Map the data collection and explore key points and related themes
  • Identify key players, timelines and communication patterns
  • Mine data for Personally Identifiable Information (PII)
  • Find redundant information and remove non-relevant, junk data

Plus Check Out These 2016 Webinar Recordings

Click the links below to watch Kroll Ontrack experts and panelists discuss the FRCP amendments and “dark data.”

January 2016: 2015 Year in Review: Ediscovery Case Law and Rules
February 2016: Turning on the Lights in a [Dark] Data Room

March 2016 Ediscovery Case Summaries

May 2016 ediscovery case summaries

Defendants’ Proposal to Redact Irrelevant Information Upheld under Newly Amended Rule 26
In re Takata Airbag Prods. Liab. Litig., MDL No. 2599 (S.D. Fla. Mar. 1, 2016)

Not All Documents from Agreed-Upon Search Terms Required to be Produced
Gardner v. Continental Cas. Co., 2016 WL 155002 (D. Conn. Jan. 1, 2016)

Court Denies Motion to Compel In Part Based on Newly Amended Proportionality
Wilmington Trust Co. v. AEP Generating Co., 2016 WL 860693 (S.D. Ohio Mar. 7, 2016)

Court Denies Motion to Compel Additional Email Searches on Proportionality Grounds
Moore v. Lowe’s Home Centers, LLC, 2016 WL 687111 (W.D. Wash. Feb. 19, 2016)

Adverse Inference Instruction Issued in Light of Newly Amended Rule 37(e)
Brown Jordan Int’l v. Carmicle, 2016 WL 815827 (S.D. Fla. Mar. 2, 2016)

Special International Case Summary

UK Court Approves Predictive Coding for First Time
Pyrrho Investments Ltd. V. MWB property Ltd. [2016] EWHC 256 (Ch)

Discovery Implications of the EU Data Protection Regulation

Passport

RMP_D_15

A recent article by my Kroll Ontrack colleagues from across the pond, Lawrence Ryz and Tracey Stretton, details the new EU Data Protection Regulation, which aims to solidify and unify the European Union’s data protection laws. As the Regulation takes effect, American companies with operations or customers in the EU will soon find themselves having to comply witl_ryz2015h a new set of laws.

US Discovery and EU Privacy Collide

In US litigation, the fundamental principle of broad discovery conflicts with the wide-ranging privacy framework of the European Union. US civil litigation under the Federal Rules of Civil Procedure (FRCP) is premised on the idea that expansive pre-trial discovery cuts to the heart of a dispute because it allows judges to focus on the legal issues with a well-developed record. European law is founded on the idea that citizens have a broad right to privacy, with little government intervention. The strengthened Regulation prohibits the transfer of any personal data processed in the European Union to a country whose privacy laws are considered inadequate by the EU’s determination such as the United States, which poses a significant conflict with US discovery obligations.

EU Gains Sword to go with its Shield

The extraterritoriality of the new Regulation is particularly worrisome for discovery in the United States. While the European Union has strengthened its shield against data collectors with the Regulation, it has also equipped itself with a shiny new sword. When the fundamental principles of American discovery and European privacy collide in a US court judges must choose between adhering to the traditional discovery rules of the FRCP and respecting an EU litigant’s legitimate right to privacy. Furthermore, with the addition of pending changes to the EU-US Privacy Shield agreement (a replacement for the Safe Harbor data transfer agreement which was invalidated by the European Court of Justice last October), the landscape of international data privacy and data transfer laws grows more complex by the day.

Impact on Ediscovery Providers

The current Directive only applies to data controllers, but the Regulation introduces a number of detailed obligations and restrictions on data processors and is therefore likely to have a significant impact on ediscovery providers and those that engage them. In the future, penalties can be imposed on data processors that do not comply with their new responsibilities and, if they act outside of the instructions received from data controllers, they could be held to be joint controllers subject to higher standards of accountability. The new obligations include the following:

  • Maintain documentation about the processing operations under their responsibility
  • Implement appropriate security measures
  • Carry out data protection impact assessments
  • Obtain prior authorization or undertake prior consultation
  • Comply with the international data transfer requirements
  • Cooperate with a supervisory authority

For more on the new EU Data Protection Regulation and its impact, be sure to read the full article, EU Data Protection Gains a Sword to go with its Shield.

 
css.php