Although the Asia-Pacific (APAC) region is generally light on rules governing e-discovery, it transforms into a heavyweight contender when U.S. litigants must collect and review data there. With an accelerated rate of globalization, increased litigation over patents, and heightened enforcement of regulations such as the Foreign Corrupt Practices Act, the prevalence of cross-border discovery is expected to grow rapidly in this region.
Currently, only a few APAC jurisdictions have formal rules that address e-discovery:
Australia: As recently mentioned on this blog, a new Australian Practice Note sets up a discovery framework for cases with at least 200 documents. The Practice Note provides several documents as guidance for parties, including a pre-discovery conference checklist, document management protocols, and a pretrial checklist.
Hong Kong: In 2014, a pilot e-discovery scheme went into effect for certain commercial cases in Hong Kong. Practice Direction SL 1.2 offers a framework designed to promote proportionate discovery in cases valued at more than HK $8 million that involve at least 10,000 documents. Parties must also complete the Electronic Documents Discovery Questionnaire, an affidavit that requires information about custodians, the form of documents, and preservation practices, among other things.
New Zealand: In 2012, New Zealand adopted new discovery rules that emphasize the principles of proportionality and cooperation. They require parties to preserve documents and disclose them with the pleadings that reference them. Parties should also consult the High Court’s discovery checklist, which acts as a road map for the discovery process, and meet and confer to agree on a discovery order. Parties must use technology efficiently and effectively throughout the discovery process and exchange documents electronically, so even paper documents must be scanned.
Singapore: Practice Direction 3 of 2009 establishes a framework for proportionate and economical e-discovery in cases valued at more than $1 million with more than 2,000 pages at issue in discovery. The Practice Direction provides guidance to parties in the form of a sample e-discovery plan, which governs searching and data sampling, while a Checklist of Issues for Good Faith Collaboration addresses custodians, storage media, data locations, dates, search terms, and production format.
What the other APAC nations lack in an e-discovery framework they make up for in strict laws that complicate the cross-border transfer of data. Many of these countries have sophisticated data privacy regimes that prohibit the transfer of documents that contain personally identifiable information (PII) without consent. Some have even more restrictive laws that govern confidential business information and state secrets. For example, parties attempting discovery in China should expect wide application of these laws to commercial documents such as meeting minutes, financial statements, and production forecasts.
Therefore, organizations that store data in the APAC region should develop a litigation readiness plan that will simplify the e-discovery process. Here are some preliminary steps you can take:
- Create a data map so you are aware of any usual data types as where they reside so you can set a realistic budget and marshal the technology, resources and expertise required.
- Apply to the Asia-Pacific Economic Cooperation (APEC) Cross Border Privacy Rules (CBPR) System to facilitate the international transfer of data.
- Establish privacy policies that notify parties that data may be collected, processed, or transferred to the U.S. for litigation. In some nations, it may be possible to obtain advance written consent to disclosure from data subjects.
- Choose document review tools that can handle complex languages, such as Chinese, Japanese, and Korean. The more robust the software platform’s arsenal of analytics tools, the better insight it will provide into linguistic and behavioral patterns.
- Consider an in situ data processing and review tool that can be deployed as a service (i.e., “backpack” e-discovery model) for temporary projects in which data needs to remain on-site.
- Retain the services of local discovery specialists with native speakers who can suggest potential keywords for searches, review data on-site and avoid the need to transfer data, as well as advise about cultural and political nuances.
Until the APAC nations enact a more comprehensive e-discovery scheme, organizations should take these steps to better govern their data and mitigate the risks of litigating cases that require the discovery of data from this region.
About the AuthorMore Content by Rachel Teisch