When It Comes to eDiscovery, Think Globally, But Localize Your Approach

January 22, 2016 Jennifer Latzo

For years, the environmental movement has encouraged people to take action in their own communities, with the goal of their local steps eventually effecting change for the entire planet. A similar approach of thinking globally but acting locally would benefit many organizations facing international investigations, particularly those involving antibribery and anticorruption claims under the Foreign Corrupt Practices Act (FCPA).

Many organizations take a uniform approach to eDiscovery to streamline workflows and cut costs. However, investigations that involve data stored in various jurisdictions around the globe raise a host of issues that make lockstep discovery tactics treacherous. For example:

  • Legal differences: Many countries do not allow for broad discovery of data, if they have a procedure for exchanging information at all: for instance, the U.K. uses a curtailed procedure called “disclosure” that permits a limited exchange of documents and data. Because litigants in other countries are unfamiliar with the concept of broad discovery, they may view requests for information as intrusive and balk at the compressed timelines for compliance.
  • Language barriers: Many documents collected abroad will have content written in at least one, if not multiple, foreign languages. To identify, collect, process, search, and review responsive documents, organizations will need access to translators who can interpret foreign-language documents and work with linguists to formulate keywords for document searches. Meanwhile, eDiscovery software platforms must be capable of parsing foreign languages, particularly those that do not use the Roman alphabet.
  • Cultural differences: Foreign customs and expectations can be baffling, and organizations must be prepared to address them. For example, in Japan, it is necessary to engage in nemawashi, a unique approach to build consensus among a team. The time it takes to ensure that a team of Japanese stakeholders has thoroughly evaluated and accepted an idea can dramatically extend the discovery timeline.
  • Data protection rules: In many countries, personally identifiable information belongs to the data subject, and the collection of that information does not grant an organization the right to process or review it, much less transfer it across international borders. Some nations, including EU member states now that the Safe Harbor decision has been eviscerated, require informed consent of data subjects or government-approved contractual arrangements for transfer. Others, like China, have few data privacy rules but restrictive rules when it comes to state secrets, which are broadly defined and may implicate corporate data.

Attempting to tackle all of these issues with a U.S.-centric, one-size-fits-all approach can create a disaster on two fronts. First, failing to account for potential delays that can be caused by these four factors can lead to sanctions from U.S. courts or government agencies. Second, failing to consider national idiosyncrasies, particularly involving data privacy laws, can breed resentment among data subjects and subject companies to penalties from foreign data protection authorities. Thus, organizations should prepare a unique litigation readiness plan that addresses these four issues for each country where they do business or store data. To meet legal, lingual, and cultural requirements yet ensure efficiency and consistency, the cornerstone of that plan must be on-site review by an experienced eDiscovery provider. Using localized eDiscovery services can prevent legal and cultural misunderstandings, accelerate the review timeline, ensure data remains secure, and minimize the need to transfer protected data.

Bill Mariano is vice president at Conduent. He can be reached at info@conduent.com.

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