Global economic indicators point to increased trade with and outsourcing to emerging markets around the world, specifically the Asia Pacific (APAC) region. Typical U.S. sectors transacting with the East include: manufacturing, business process outsourcing (BPO)/legal process outsourcing (LPO), call centers, and other industries. The Asian Development Bank stated last year that Asia will account for half of all global economic output by 2050 if their collective GDP stays on pace. The next 10 years will likely bring BRICS (Brazil, Russia, India, China and Japan) and The Four Asian Tigers (Hong Kong, Singapore, South Korea and Taiwan) into the forefront of the global economy. Combining this projected economic growth with the data explosion makes knowledge about the APAC legal system a necessity for litigators and international business people alike.
The convergence of the global economy across different privacy and data protection regimes has increased the complexity of addressing electronically stored information (ESI). Money and data in large volumes cross borders daily in order to conduct international business. This is true not only for Asian countries transacting with each other, but increasingly with Europe and the United States. Moreover, because technology continues to decrease the reliance on data in paper format, data will need to be produced and analyzed in the form in which it was created. This is important from a forensic standpoint, as well as an information management perspective. This technical push is reason alone that organizations will need to shift their processes and technologies to focus more on ESI – not in only in how data is created, but in how those organizations store, search, retrieve, review and produce data.
Discovery Equals eDiscovery
The world of eDiscovery for the purposes of regulation and litigation is no longer a U.S. anomaly. This is not only because organizations may be subject to the federal and state rules of civil procedure governing pre-trial discovery in U.S. civil litigation, but because under existing Asian laws and regulatory schemes, the ability to search and retrieve data may be necessary.
Regardless of whether the process of searching, retrieving, reviewing and producing data (eDiscovery) is called discovery or disclosure or whether these processes occur before trial or during, the reality in litigation, especially for multinational corporations, is that eDiscovery may be required around the world. The best approach is to not only equip your organization with the best technology available for legal defensibility and cost-savings from the litigator’s tool belt, but to know the rules by which one must play.
The Passports
The knowledge level for many lawyers about how to approach a discovery request in APAC jurisdictions is often minimal, but there are resources that provide straightforward answers at no cost to the end-user. For example, Symantec has just released a series of “eDiscovery Passports™” for APAC that focus on discovery in civil litigation, the collision of data privacy laws, questions about the cross-border transfer of data, and the threat of U.S. litigation as businesses globalize. The Passports are a basic guide that frame key components about a country including the legal system, discovery/disclosure, privacy, international considerations and data protection regulations. The Passports are useful tools to begin the process of exploring what considerations need to be made when litigating in the APAC region.
While the rules governing discovery in common law countries like Australia (UPC) and New Zealand (HCR) may be less comprehensive and require slightly different timing than that of the U.S. and U.K., they do exist under the UPC and HCR. Countries like Hong Kong and Singapore, that also follow a traditional common law system, contain several procedural nuances that are unique to their jurisdictions. The Philippines, for example, is a hybrid of both civil and common law legal systems, embodying similarities to California law due to history and proximity. Below are some examples of cases that evidence trends in Asian jurisdictions that lean toward the U.S. Federal Rules of Civil Procedure (FRCP), Sedona Principles and that support the idea that eDiscovery is going global.
- Hong Kong. In Moulin Global Eyecare Holdings Ltd. v. KPMG (2010), the court held the discovery of relevant documents must apply to both paper and ESI. The court did, however, reject the argument by plaintiffs that overly broad discovery be ordered as this would be ‘tantamount to requiring the defendants to turn over the contents of their filing cabinets for the plaintiffs to rummage through.’ Takeaway: Relevance and proportionality are the key factors in determining discovery orders, not format.
- Singapore. In Deutsche Bank AG v. Chang Tse Wen (2010), the court acknowledged eDiscovery as particularly useful when the relevant data to be discovered is voluminous. Because the parties failed to meet and confer in this case, the court ordered parties to take note of the March 2012 Practice Direction which sets out eDiscovery protocols and guidance. Takeaway: Parties must meet and confer to discuss considerations regarding ESI and be prepared to explain why the discovery sought is relevant to the case.
- U.S. In E.I. du Pont de Nemours v. Kolon Industries (E.D. Va. July 21, 2011), the court held that defendants failed to issue a timely litigation hold. The resulting eDiscovery sanctions culminated in a $919 million dollar verdict against the defendant South Korean company. While exposure to the FRCP for a company doing business with the U.S. should not be the only factor in determining what eDiscovery processes and technologies are implemented, it is an important consideration in light of sanctions. Takeaway: Although discovery requirements are not currently as expansive in Asia as they are in the U.S., if conducting business with the U.S., companies may be availed to U.S. law. U.S. law requires legal hold be deployed in when litigation is reasonably anticipated.
Asia eDiscovery Exchange
On June 6-7 at the Excelsior Hotel in Hong Kong, industry experts from the legal, corporate and technology industries gathered for the Asia eDiscovery Exchange. Jeffrey Toh of innoXcell, the organizer of the event in conjunction with the American eDJ Group, says “this is still a very new initiative in Asia, nevertheless, regulators in Asia have taken steps to implement practice directions for electronic evidence.” Exchanges like these indicate the market is ready for comprehensive solutions for proactive information governance, as well as reactive eDiscovery. The three themes the conference touched on were information governance, eDiscovery and forensics. Key sessions included “Social Media is surpassing email as a means of communication; What does this mean for data collection and your Information Governance Strategy” with Barry Murphy, co-founder and principal analyst, eDiscovery Journal and Chris Dale, founder, e-Disclosure Information Project, as well as “Proactive Legal Management” (with Rebecca Grant, CEO of iCourts in Australia and Philip Rohlik, Debevoise & Plimpton in Hong Kong).
The Asian market is ripe for new technologies, and the Asia eDiscovery Exchange should yield tremendous insight into the unique drivers for the APAC region and how vendors and lawyers alike are adapting to market with their offerings. The eDiscovery Passports™ are also timely as they coincide with a marked increase in Asian business and the proposal of new data protection laws in the region. Because the regional differences are distinct with regard to discovery, resources like this can help litigators in Asia interregionally, as well as lawyers around the world. Thought leaders in the APAC region have come together to discuss these differences and how technology can best address the unique requirements in each jurisdiction. The conference has made clear that information governance, archiving and eDiscovery tools are necessary in the region, even if those needs are not necessarily motivated by litigation as in the U.S.