ICYMI: Ediscovery in China [Webinar]

Ediscovery in China

Kroll Ontrack recently presented the Ediscovery in China: Traditions, Rules and Customs You Need to Know webinar. In the webinar, which is now available on-demand, Kate Chan, Kroll Ontrack’s Regional Managing Director in APAC, discussed the following barriers and best practices for ediscovery projects with data in China.

Watch the webinar to learn more about ediscovery in China.

The Implications of China’s Regulatory Framework

Unlike the United States, China does not have formal discovery practices in civil litigation, which presents initial contentions between these legal systems on opposite sides of the world. The Chinese government has several regulations that impose possible restrictions on gathering data in China for an investigation or litigation. The most impactful regulation is the State Secrets law. State secrets are broadly and vaguely defined by the Chinese government as “matters that have a vital bearing on state security and national interests and, as specified by legal procedure, are entrusted to a limited number of people for a given period of time.” Individuals are prohibited from sharing and transferring such secrets, complicating data collection, review and production practices, should any of such information be classified as a State Secret in an investigation or litigation.

Language and Cultural Challenges

Other ediscovery barriers in China revolve around language and culture: English is not the primary language in China, the Chinese are very formal in their communication style and there are many regional dialects in China, making searches and early data assessment difficult for English-speaking litigation professionals.

Work culture in China is very family-oriented, with the entire family prioritized above the needs of individual members, also known as familism. Because of this, many managers tend to hire their relatives and many businesses tend to be family-owned.

Further, litigation teams working in China need to understand the Chinese cultural phenomenon known as guanxi, which refers to personalized networks of influence and reciprocity between individuals and businesses. All of this makes examining data related to ediscovery challenging and unique.

Developing Economy

In addition to the regulations, language and cultural challenges, the Chinese economy is still developing. China’s legal system and corporate governance practices are less developed when compared to other countries, resulting in much reluctance toward, and unfamiliarity with, data collection and analysis activities associated with litigation. Manufacturing and production plants tend to be located in remote locations rather than in big cities, which means that litigation teams often have only one chance to obtain the needed data. Lastly, China still uses a great deal of paper documents with employees often mixing data between their personal and business computers.

Best Practices

With all the challenges that litigation teams may face when an ediscovery project crosses borders to China, these are some of helpful tips to keep in mind:

  • Get an expert well-versed with different Chinese-language dialects
  • Consider diverse data sources
  • Use local resources for collection
  • Consider a mobile ediscovery solution

Want to learn more? Download the webinar today!

6 Months of Case Law Under the New FRCP

FRCP case law digest

Six months have passed since the December 1, 2015 amendments to the Federal Rules of Civil Procedure (FRCP) took effect. What has been the impact of the new rules on civil litigation and discovery?

In particular, Rule 26(b)(1) and Rule 37(e) have attracted a sizeable amount of jurisprudence, as both courts and parties grapple with the applications of these new rules. To aid today’s practitioner, Kroll Ontrack analyzed the most significant judicial opinions of the last six months relating to Rule 26(b)(1) and Rule 37(e).

How have the amendments impacted discovery? Download the FRCP case law digest.

Proportionality Reigns Supreme

In the first six months since the 2015 amendment to Rule 26(b)(1), courts have struggled with the removal of the “reasonably calculated” language, and the additional emphasis on proportionality. Pioneering lawsuits have fleshed out the most pressing questions such as what factors matter the most when arguing proportionality? In what way should a party object to discovery under the new rules? Looking at the totality of the case law, one new theme has emerged—there is no substitute for specificity. Both parties are required to state with specificity why they are requesting or objecting to discovery.

Safe Harbors for “Reasonable Steps”

In the past, organizations have been pressured to preserve massive amounts of ESI at tremendous expense. The 2015 amendments have attempted to require only “reasonable steps” be taken to preserve the information. But is it actually advancing adequate data preservation causes? What constitutes “reasonable steps” under the new FRCP amendments? If evidence was preserved and then lost, what level of intent is needed before a court will impose sanctions?

Each of these questions are addressed in Kroll Ontrack’s case summary digest, with the most relevant case law opinions highlighting the expectations from the courts in the first six months since the 2015 FRCP amendments. Download a copy of the FRCP case law digest by Kroll Ontrack, which not only summarizes key findings but also contains a circuit-by-circuit list of judicial opinions referencing FRCP amendments to Rule 26(b)(1) and Rule 37(e).

Still catching up on the 2015 amendments? Download a copy of Kroll Ontrack’s 2015 FRCP Amendments guidebook, which contains each of the December 1, 2015 amendments and full text of the Advisory Committee notes.

June 2016 Ediscovery Case Summaries

ediscovery case summaries

Sanctions Implemented After Party Fails to Preserve Emails
Mathew Enter. v. Chrysler Grp. LLC, No. 13-cv-04236-BLF, 2016 U.S. Dist. LEXIS 67561 (N.D. Cal. May 23, 2016)

Court Rides on Relevancy, Allowing Party to be Railed by Requests
Amtrak v. Guy M. Turner, Inc., NO. 4:15-CV-68-BO, 2016 U.S. Dist. LEXIS 61073 (E.D.N.C. May 9, 2016)

Discovery Request Found Not Proportional; Department Store Relieved from Production
Douglas v. Kohl’s Dep’t Stores, Inc., 2016 U.S. Dist. LEXIS 54782 (M.D. Fla. Apr. 25, 2016)

Party’s Failure to Produce Some Facebook Data Results in Compelled Discovery of All Social Media Data
Rhone v. Schneider Nat’l Carriers, Inc., 2016 U.S. Dist. LEXIS 53346 (E.D. Mo. Apr. 21, 2016)

Party’s Failure to Specify Objection in Refusing Discovery Request Results in Compelled Discovery
Heller’s Gas, Inc. v. Int’l Ins. Co. of Hannover Ltd., 2016 U.S. Dist. LEXIS 71069 (M.D. Pa. June 1, 2016)

Antitrust Video Series: Part 1

Antitrust videos

Navigating the Seas of Global Antitrust and the Expanding Internet Frontier

Every year, the leading practitioners in antitrust law congregate in Washington, DC for more than just the cherry blossoms: they gather for the Annual Spring Meeting of the ABA Section of Antitrust Law. This year, the Spring Meeting focused on global antitrust law, highlighting that now, more than ever before, the legal antitrust professional needs to contend with the global market.

Not everyone is lucky enough to attend the Spring Meeting, so at this year’s meeting Kroll Ontrack was honored to partner with The Capitol Forum to bring you a glimpse of the exciting new topics that were discussed. Nationally renowned experts on antitrust law shared their insights and opinions with us over a dozen short, exclusive antitrust videos, which are available here for you. Part One of our video series focuses on antitrust issues involving either international jurisdictions or Internet companies, with each video each highlighting a unique facet of the current antitrust environment. Each video is organized with a short description to make is easier for you to decide which of these compelling videos to view first.

Internet Markets are Different

Scott Sher

Scott Sher

The unique follower devotion, the speed of buildup and the customer base consisting of both users and advertisers are just a few ways that Internet markets are different and are proving to be a challenge for regulatory schemes both in the United States and abroad.

Watch: Internet Monopolies featuring Scott Sher, a partner at Wilson Sonsini Goodrich & Rosati, as he discusses the unique antitrust issues facing Internet platform monopolies.

 

Diversity in Regulatory Regimes Brings Improvement Along with Headaches

William Kovacic

William Kovacic

The United States is no longer the only major jurisdiction with antitrust filing, and this has resulted in increased time and expense. Is there a unified system of regulatory filings on the horizon, and if so, should there be?

Watch: Global Antitrust Regimes featuring Professor William Kovacic of George Washington University, as he discusses the global establishment of antitrust regimes around the world, the complications and possible solutions to remedy these problems.

 

Antitrust Law Continues to Build on What Came Before

Antitrust videos

Jonathan Kanter

Antitrust law originated to prevent railroad companies from exploiting the market. Today, antitrust law is struggling to grapple with the challenges presented by Internet companies.

Watch: Mechanisms of Antitrust Law featuring Jonathan Kanter, a partner at Cadwalader, Wickersham & Taft, as he discusses the history and mechanisms of antitrust law and its emergence as a public issue.

 

 

Be sure to keep watch for next month’s arrival of Part Two of our video series, which will feature the remaining videos and focus exclusively on antitrust issues currently at play in the United States.

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

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

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.”

 
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