Investigation and Litigation in China – News & Notes

Dan Whitaker, Managing Director, China

On January 24th Consilio held its 2nd Annual APAC Conference at Fordham Law School with supporting sponsors the Chinese Business Lawyers Association New York Chapter (CBLA) and the Asian-American Bar Association of New York (AABANY).  The topic this year was “Investigation and Litigation in China: eDiscovery Challenges”. The panel was led by renowned China expert and Chair of the China practice at Dorsey Whitney, Geoffrey Sant.  I was thrilled to join the prestigious panel of Brian Chebli, Assistant General Counsel at JP Morgan Chase; John Curran, Partner at Walden Macht & Haran; Bill McGovern, Partner at Kobre & Kim; Jamie Underwood, Partner at Latham & Watkins and MinYao Wang, Counsel at Robins Kaplan.

The panel shared their thoughts in regard to how the changing Chinese economy is leading to a greater degree of responsiveness to discovery efforts in patent litigations.  Chinese companies view the US as an indispensable market and are now willing to weather the costs of litigation and discovery as the price of doing business in the US. eDiscovery practitioners, such as Consilio, are in a better position to show how they can reduce the cost of collections, processing and hosting of data and managed document review services inside mainland China.

Geoffrey Sant referred to his article Court-Ordered Law Breaking which found that US judges overwhelmingly reject requests to limit or restrict discovery due to conflicts of foreign law, such as China’s state secret law. This means that US legal practitioners working in China will often have competing constituencies vying for precedence in data collection, making the state secret reviews even more important.

Members of the audience were also eager to hear from on-the-ground practitioners in China as to the process and capabilities of both state secret reviews and the data collection of WeChat, both challenges for compliance personnel and legal teams throughout China.  The need to source governmental department and provincial level documents for guidance on state secrets, as well as ensure the process is carried out by Chinese nationals working with a PRC-licensed review manager, is a hallmark of Consilio’s methodology and was lauded as a best practice by the panel. In addition, further panel discussion bore out that Consilio’s technical expertise and ability to keep up with third party applications to collect WeChat data, including the ability to capture deleted messages, documents, and voice messages, was seen as a differentiating capability.

Given the success of our first two events, Consilio will be extending the conference series to other cities both in China and in the United States. Look out for more valuable insights on issues facing eDiscovery and US legal practitioners in China, in particular as I begin preparations to once again serve as a delegate on the AmCham Shanghai “D.C. Doorknock.”  Last year I was asked to serve on the 12 member American Chamber of Commerce of Shanghai’s delegation to Washington, DC on a three day visit with members of the Trump Administration and members of Congress to discuss trade legislation and the conditions on the ground for American businesses in China.  We accomplished a great deal – and learned a lot – as we walked the corridors of D.C. seeking to advance the interests of our member companies in China while creating American jobs and driving American exports.

Please be on the lookout for additional events in our Consilio China Series – March 12th at 4pm we will be hosting a webinar on Investigations and Litigation in China featuring panelists from Arnold & Porter, Dorsey Whitney, Drinker Biddle,  Latham & Watkins and Shearman & Sterling.  And on March 26th we will be hosting a live evening event in Beijing with panelists from Covington & Burling, DLA Piper, Kobre & Kim, Skadden Arps, and Quinn Emanuel.

Dan Whitaker is Managing Director of Consilio’s China operations and can be reached at, by Mobile / 手机 at +86 13601822938 or at danwhitaker on Wechat / 微信.