Data privacy issues, secrecy laws in China and other regulations can make conducting e-discovery in Asia a daunting task, especially when crossing jurisdictions. These problems are likely to get worse as Asian economies and regulations grow, predicts Washington, D.C.-based FTI Consulting Inc. in its report, “E-discovery in Asia: Legal, Technical and Cultural Issues.”
The FTI study, which examined electronic data discovery and forensic investigations in Asia, polled 70 lawyers at Asian-based law firms and corporate EDD departments (14 from 14 corporations and 56 from 20 law firms). Responses were collected between September 2013 and January 2014; 65 responses were via a 20-question online survey; five people participated by phone.
Key Takeaways
• The largest challenge was managing data privacy laws and confidentiality concerns, the report states. New laws in China create challenges that will “impact the management of electronic data in legal review,” said 40 percent of respondents. FTI analysts suggested that the long-standing Law of the People’s Republic of China on Guarding State Secrets, initiated in 1988, remains “broad and vague.” For example, the law requires documents to be greenlighted by the government before leaving China.
• Most data collected for an investigation, arbitration or litigation matter in the region comes from China (60 percent), participants said. The U.S. and Hong Kong were tied with 42 percent, and Japan came in fourth with 40 percent.
• Prices are still foggy: 29 percent of respondents could not put a price tag on the costs for their organization's multinational electronic document collection and review matters.
• The best method to handle document review, said 83 percent of respondents, is to join forces with local counsel, IT providers, law departments or global services providers for local collection services.
• Sixty-seven percent said regulatory investigations are the biggest driver of e-discovery, the report noted. They attributed much of that to ongoing enforcement of the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, as well as regulators and company-driven internal compliance reviews.
The report was conducted in collaboration with Asian Legal Business magazine.
Getting Attention
Despite the rocky forecast, e-discovery in Asia is gaining traction. There is an increasing presence in the region. Last year Catalyst Repository Systems opened a shop in Seoul. Its CEO, John Tredennick, noted in January that e-discovery is just beginning in Asia. “While electronic data discovery is becoming more accepted and localized worldwide, with numerous foreign domicile corporations taking review in-house and local counsel playing a more prominent role in EDD decisions, it's still in its infancy in both Korea and Japan.”
Another player in the arena is UBIC Inc. The Japan-based company offers e-discovery and digital forensics services in Asia and beyond, and last month received two patents in Japan and the U.S. for predictive coding.
“With Asia being a big part of economic globalization, e-discovery in Asia will become something that companies will have to confront on an increasing basis,” said Veeral Gosalia, a senior managing director in the technology segment at FTI Consulting.
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