publication of the International Legal Technology Association
Issue link: https://epubs.iltanet.org/i/518940
ILTA WHITE PAPER: MAY 2015 WWW.ILTANET.ORG 23 A GUIDE TO E-DISCOVERY IN ASIA GO BEYOND TRANSLATION Even a U.S. attorney proficient in an Asian language will struggle with APAC e-discovery 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. U.S. lawyers should be prepared for this disconnect and know how to navigate communications. This goes beyond proficiency in an Asian language and goes well into educating clients about the U.S. discovery process. START PRESERVATION EARLY Most APAC companies are unfamiliar with document retention obligations that attach in the U.S. once a lawsuit is filed. Many of these companies might not even have electronic document storage and recovery systems in place. Quickly preserve data even if the course of action for litigation is not clear. NINE TIPS AND TACTICS APAC e-discovery arises from multiple types of cases. While the majority of cases come from U.S. or European Union litigation, a large portion of APAC e-discovery results from cases that involve regulatory requests, internal investigations (most often related to the Foreign Corrupt Practices Act in the U.S. or the U.K. Bribery Act) and company-driven internal compliance reviews. Handling these APAC e-discovery issues might seem like a daunting task to many e-discovery professionals. Here are nine practical tips to help you navigate the differences in culture, technology and business practices: CONFIRM THE IT ENVIRONMENT IN DETAIL BYOD (bring your own device) is not common in APAC, but there are cases where personal cellphones are used for business because of the lack of company-provided cellphones. Take time with the local IT members and custodians, and ask for details on what IT devices are and are not for company and personal use. Confirm software and functions as well. BE CAUTIOUS OF NATIONALIST CHALLENGES Strong nationalism could thwart U.S. litigation collection efforts, as parties question why APAC privacy considerations do not trump U.S. discovery laws. Tread lightly with this matter to avoid further bumps in the dispute resolution process, and thoroughly explain the reasoning behind each discovery request. CAPTURE FULL FORENSIC IMAGES AND CONDUCT CLIENT INTERVIEWS Because of geographical and nationalist challenges in APAC, a lawyer cannot risk an insufficient collection. 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. WATCH FOR INTERNATIONAL DATA NUANCES In the APAC region, software is often different from other countries. The multilingual software platforms generate different metadata fields. Using free email packages is more prevalent, and an attorney might need to collect ESI from several email systems. Awareness of these differences and the ability to address them will give any U.S. attorney an advantage. EXPECT ENCRYPTED DATA APAC companies frequently encrypt their data, creating obstacles for e-discovery professionals. Build a workflow into collection, processing and review for handling any password-protected or encrypted documents. In addition, keep a list of passwords found during document review, and be prepared to use password-cracking software.