In our ever-shrinking, interconnected world, it is imperative that legal practitioners establish expertise in international ediscovery law. One of the most dramatic evolutions in ediscovery is occurring in the Asia-Pacific region (APAC).
As in the U.S., several APAC countries have created special rules for the discovery of electronic data. Hong Kong, Singapore and Japan have (or are in the process of) adopted data privacy regulations. Hong Kong uses traditional English discovery law, which makes Hong Kong the APAC country most amenable to American ediscovery efforts. Singapore is equally as advanced, given its recent adoption of aggressive measures to become the premiere dispute resolution hub of the region. Japan has likewise begun deliberations on the implementation of ediscovery laws, but the Japan Privacy Act permits the conditional transfer of personal information from a corporate entity to a third party.
Perhaps the most challenging ediscovery environments are those of China and South Korea. In South Korea, ediscovery law is still relatively non-existent. China, on the other hand, deals with data protection and privacy issues on a piecemeal basis, and a central framework for governing ediscovery matters has yet to be established.
Handling these APAC ediscovery issues seems like a daunting task, but here are seven practical tips:
1. APAC Ediscovery Goes Beyond Translation
Even a U.S. attorney proficient in an Asian language will struggle with APAC ediscovery because of vast differences in legal systems. Most APAC companies cannot fathom why an American court would require a party to collect and exchange massive amounts of data.
2. Be Cautious of Nationalist Challenges
Strong nationalism may thwart U.S. litigation collection efforts, as parties question why APAC privacy considerations do not trump U.S. discovery laws.
3. Capture Full Forensic Images and Conduct Client Interviews
Because of geographical and nationalist challenges in APAC, a lawyer cannot risk an insufficient collection. As such, active data capture is not recommended in the APAC region. Along the same lines, it is important to ask custodians for all spelling variations of their name during the client interview.
4. Watch for International Data Nuances
In the APAC region, software is often vastly different from U.S. software. Furthermore, multilingual software platforms generate different metadata fields than U.S. software platforms. Finally, use of free email packages is more prevalent, and an attorney may need to collect ESI from several email systems.
5. APAC Companies Tend to Encrypt More Data
Build a workflow into collection and review for handling password protected documents. Keep a list of passwords found during document review, and be prepared to use password cracking software.
6. Don’t Overlook the Paper
Unlike in the U.S., APAC businesses still rely heavily on paper documentation. Pay special attention to paper in the APAC region, given that paper sizing and hole punching may be different. Optical Character Recognition (OCR) is often not available for many languages.
7. Make Friends and Work with Local Counsel
Perhaps most importantly, local counsel experienced in ediscovery collections or local service providers can greatly assist American attorneys by acting as a mitigating party, explaining sovereignty issues, integrating paper and data into one database, and collecting data before spoliation occurs.
Overall, APAC ediscovery law has proven to be extremely agile; thus, it is important for practitioners to keep afloat in these ever-changing waters.
For a top-notch overview of international ediscovery laws, check out this global ediscovery infographic.