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Litigation and Practice Support — May 2015

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ILTA WHITE PAPER: MAY 2015 WWW.ILTANET.ORG 22 A GUIDE TO E-DISCOVERY IN ASIA BY THE REGION In addition to overarching issues, these distinct legal paradigms subsist in the APAC region: • Japan: The Personal Information and Protection Act of 2003 restricts the collection, use and transfer of personal data. As already mentioned, the Japan Privacy Act limits the transfer of data from a corporate entity to a third party. Currently, Japan has no law that directly addresses e-discovery. • South Korea: Perhaps the most challenging e-discovery environments in APAC are those of South Korea and China. While e-discovery law in South Korea is still relatively undeveloped, several laws protect the processing of personal information. The 2011 Act on the Protection of Personal Data requires many businesses and government agencies to provide data breach protection. • China: China deals with data protection and privacy issues on a piecemeal basis, and a central framework for governing e-discovery matters has yet to be established. China's ban on transferring "state secrets" (a term that carries a vague and broad definition) creates a significant barrier to compelling production of information in U.S. litigation. Further, China's regulations often are in direct conflict with U.S. regulations and judicial orders. All documents must be reviewed and cleared of any secrecy concerns before they may leave China. Data from China is the frequent target of U.S. litigation and international investigations. China does not formally allow or require the discovery of information relevant to litigation; however, many courts and regulators outside of China are unsympathetic to this issue. • Hong Kong: In stark contrast to neighboring China, Hong Kong follows a common law structure and discovery process similar to the U.S. While Order 24 of the Hong Kong Rules of High Court provides a discovery framework that allows courts to limit discovery to forward objectives like "cost-effectiveness," "fairness" and "expeditious" dispute resolution, in the last couple of years, Hong Kong has been considering a comprehensive practice direction to face e-discovery head-on. • Singapore: As a common law country, Singapore used to have an "opt-in" approach to e-discovery, but in 2012, it amended its discovery regime (Practice Direction 3 of 2009) to allow courts to order e-discovery without consent of the parties. The new rule emphasizes the importance of proportionality, search and keyword testing. China deals with data protection and privacy issues on a piecemeal basis, and a central framework for governing e-discovery matters has yet to be established.

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