A global economy brings with it global litigation—and global e-discovery. Regulatory investigations involving global data are also on the rise, with growing enforcement of the Foreign Corrupt Practices Act and other laws such as the U.K. Bribery Act. Moreover, companies that recognize the heightened regulatory risks are conducting internal compliance reviews with greater frequency.
But while the urgency and much of the technology used may be the same regardless of location, other differences between jurisdictions make discovery abroad much more complicated. Companies that can seamlessly conduct business around the world often face obstacles when responding to cross-border discovery.
Here are some of the dilemmas U.S. organizations may face when handling the discovery of international materials, as well as some suggestions for how to handle them.
- Data privacy. Collecting and producing data stored across borders can become incredibly complex given restrictions on the international transfer of personally identifiable information (PII), such as the strict rules imposed by the European Union’s Data Protection Directive. Moreover, some nations, such as China, have laws that closely protect state secrets, often including commercial information essential to discovery.A solution: Conducting an on-site investigation and preserving, collecting, and reviewing data in place can minimize some of the issues, as going directly to the data source limits the risks associated with processing and transferring data. When you review data in place, you can also involve key local employees in the process. Culling the data as much as possible with software and tools can limit the need to obtain approval for an entire data dump and facilitate ways to avoid transferring personal information, such as by redacting or anonymizing the PII before transfer.
- Cultural expectations. Foreigners are often astonished at the breadth of U.S. discovery and its focus on relevance, because discovery procedures in their countries are often much narrower in scope and emphasize the concept of proportionality. Overseas personnel may therefore be less prone to comply with preservation and collection requirements or may be less willing to comply with the requests of U.S. personnel if they fear that their management may view their cooperation as disloyalty. It may also be difficult to find local staff members with sufficient skill to handle American discovery.A solution: Educate employees in non-U.S. offices about U.S. litigation and discovery requirements as a matter of routine before litigation ensues. Retain the services of an e-discovery provider that can help you navigate the country’s business practices and customs. Be sure to consider the impact on deadlines of local holidays and work schedules. In some locations, security considerations and weather conditions can also delay progress, so take appropriate precautions.
- Language barriers: Not only do languages with unusual characters, such as Chinese, Japanese, and Korean, pose problems for review software, but they can also create issues for creating reliable keywords for search and for giving instructions to local reviewers. Literal translations of terms are not always accurate, particularly when native speakers immersed in the country’s culture are not involved in the document review.A solution: Employ a discovery provider with experience working with documents in various languages and has access to technology and other resources that can help. For example, the provider might use software to identify and segregate foreign-language documents into separate document sets for review, and enlist the help of native speakers who can identify cultural nuances and work with local counsel to identify search terms relevant to the matter. Or the provider might use specialized technology to facilitate searches in the native language. In matters with documents in more than two languages, carefully consider the risks of translating the documents into a single language, as you may unwittingly misinterpret important words and phrases.
- Data sources. Overseas branches of organizations may use specialized software or encryption that may complicate its conversion to a format suitable for review.A solution: Interview local IT personnel in advance to determine the types of hardware, software, and data in play, and ensure you or your discovery provider have sufficient resources to handle their collection and review. It may be prudent to make a forensic copy of the data to avoid the risk of losing data or corrupting files. Unless you have a complete understanding of the data landscape at the outset of the project and take steps to ensure its preservation, you might have to return to the country later for a costly re-review.
People, processes, and technology are the three essential elements required for any e-discovery project to succeed, but as the challenges described above illustrate, the people are the linchpin. An e-discovery specialist with local knowledge, experience, and connections can marshal internal and external resources and make the difference between a global e-discovery project that runs smoothly and one that engenders additional legal issues and costs.