Digital White Papers

Litigation and Practice Support — May 2015

publication of the International Legal Technology Association

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ILTA WHITE PAPER: MAY 2015 WWW.ILTANET.ORG A GUIDE TO E-DISCOVERY IN ASIA practices for tactical data preservation, collection, processing and review. COMMON THEMES ACROSS APAC Most countries in the APAC region are civil jurisdictions, as opposed to common law structures as in the U.S. or U.K. legal systems. With e-discovery in APAC still in its early stages, it is hard to make sweeping and general statements that apply across the entire region. While the best approach is to consider each country's laws and customs individually, some general themes apply: • Privacy and Confidentiality: As in the U.S., some APAC countries have created special rules for the discovery of electronic data. However, data privacy and confidentiality pose the biggest challenges for APAC e-discovery projects. Many e-discovery professionals have indicated concern regarding new laws forming in the APAC region around data privacy. For example, Hong Kong, Singapore and Japan have all adopted (or are adopting) data privacy regulations. Hong Kong uses traditional English discovery law, which makes Hong Kong the APAC country most amenable to American e-discovery 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 implementing e-discovery laws, but the Japan • Multi-Country Matters: In the APAC region, it is not uncommon for a single legal matter to have data collection and preservation efforts cross multiple national borders. Further complicating things, there is a trend toward cooperation among regulators from different countries, driving more e-discovery in more countries. Privacy Act makes conditional and limits the transfer of personal information from a corporate entity to a third party. • Cost Control: Another concern with APAC e-discovery is the associated costs. However, it is not the price tag that creates concern — it's the lack of knowledge. Many APAC companies are uncertain of how much they spend on discovery and are also unfamiliar with spending as it relates to U.S. litigation. In addition, as many APAC companies have difficulty understanding the purpose behind the production of data, they have difficulty accepting the costs and feel that discovery creates an unnecessary burden. Because of this, it is important for U.S. lawyers to be upfront with APAC companies and thoroughly explain associated costs and the purpose behind discovery requests. 21 Most APAC companies cannot fathom why an American court would require a party to collect and exchange massive amounts of data. U.S. lawyers should be prepared for this disconnect and know how to navigate communications.

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