There is no question that globalization has met the corporate world head-on, and the digital age promises to push the international business community to become even more interconnected. In this expanding global environment, it is imperative that corporate attorneys establish expertise in international e-discovery law. Experiencing the fastest rate of evolution in e-discovery is the Asia-Pacific region (APAC). This evolution has created a number of challenges for corporate counsel of multinational organizations.
Overview of global e-discovery
Looking in from the outside, handling differences in e-discovery law seems a daunting task for U.S. corporate lawyers. However, there are six practical tips to deal with these issues.
- E-Discovery in APAC is more than just translation. Even a U.S. attorney proficient in an Asian language will struggle with APAC e-discovery because of vast differences in the legal systems. Most APAC companies cannot fathom why an American court would require a party to collect and exchange massive amounts of data.
- 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.
- 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 especially important to ask custodians for all spelling variations of their name during the client interview.
- Watch for international data nuances. In the APAC region, software packages may be different than they are in the U.S., and often older versions are commonplace. Furthermore, multilingual software platforms generate different metadata fields than U.S. software platforms, and metadata fields may be in different languages. Finally, use of free email packages is more prevalent, and an attorney may need to collect ESI from several e-mail systems.
- 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.
- Do not overlook paper documents. 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) often is not available for many languages.