eDiscovery in Asia: What U.S. Legal Professional Need to Know

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ModeratorJason Velasco

Jason Velasco is an electronic discovery industry veteran with more than 15 years of experience in electronic discovery issues and forensic investigations.

During  Mr. Velasco’s tenure as one of the founders of Renew Data Corp, Vice-President of Client Services at Merrill Corporation, and  Director in the Forensic Technology practice at KPMG, he conducted more than 350 computer forensic examinations for civil litigators and companies. 

Mr. Velasco is a leading computer forensic specialist providing expert witness services related to electronic evidence topics and data preservation issues, especially in spoliation matters. 

Mr. Velasco has also conducted more than 700 CLE courses on topics such as eDiscovery, document retention, preservation archiving, collection methodologies, email archiving and compliance, effective communication with IT, and the technical aspects of electronic evidence.

PanelistsKate Chan

• Regional Managing Director of Kroll Ontrack’s Legal Technologies unit in Asia Pacific.

• Native of Hong Kong – fluent in Mandarin and Cantonese.

• New York lawyer educated in New York City with practice life starting out on Wall Street.

• 8 years combined at Kroll Ontrack eDiscovery Consulting, Client Relationship, and Case Management experience – most recently 5 of such years in Asia assisting US Multi-Nationals and Asia based companies doing business in the US.

• Advisory role for Asia based clients defending Antitrust investigations and actions.

 

Overview of Global eDiscovery Guidance on APAC eDiscovery Transoceanic Transfer Tips Sedona Conference Principles Parting Thoughts and Q&A

Agenda

Overview of Global eDiscovery Discovery of documents and electronic

information abroad is an increasingly important part of litigation

“ “

Gartner, Magic Quadrant for E-Discovery SoftwareJune 10, 2013

Growing awareness of e-discovery issues in Europe and Asia will drive growth in these regions… the U.S.’s share of total [ediscovery] revenue will decline from 81% in

2012 to less than 70% in 2017.

Challenges of Global eDiscovery Problems with foreign discovery are driven

by fundamental differences in legal systems and privacy/data protection laws

U.S. courts may be unfamiliar with, and take a dim view of, foreign law

Laws and practices are quickly evolving across the world

Guidance on APAC eDiscovery

eDiscovery Approaches | The U.S Can get discovery of documents in

“possession, custody, or control” Duty to preserve with sanctions on the

backend Duty to respond to requests for discovery

• Scope is broad: information that is relevant or may lead to relevant evidence

Well-defined concept of litigation hold Less emphasis on data protection

and personal privacy

APAC eDiscovery

2013 eDJ Group Asian eDiscovery Survey

APAC eDiscovery

2013 eDJ Group Asian eDiscovery Survey

Types of APAC eDiscovery Cases

2013 eDJ Group Asian eDiscovery Survey

Global E-discovery: APAC Summary

eDiscovery Approaches | Hong Kong

eDiscovery Approaches | Singapore

eDiscovery Approaches | Singapore

eDiscovery Approaches | South Korea

eDiscovery Approaches | Japan

Multiple jurisdictions now encourage or require parties to discuss proportionality, use technology and cooperate with opposing parties to

• Ensure that only data strictly necessary for legal proceedings is transferred out

• Locate, reduce and review relevant evidence defensibly and efficiently

• Reduce cost and justify efforts• Ensure the scope of the search is

proportionate to the case at hand using technology

Transoceanic Transfer Tips: Technology

Meet and confer or take early 30(b)(6) depositions to find location of data

Ensure consistency and multilingual compatibility among technologies

Complement technology capabilities with personnel where applicable (consider hiring foreign counsel and translators)

International Document Review through SaaS platform: questionable if this qualifies as a transfer

Transoceanic Transfer Tips: Further Guidance

2013 eDJ Group Asian eDiscovery Survey; n=66

2013 eDJ Group Asian eDiscovery Survey; n=67

1. eDiscovery in APAC is more than just translation.

Even a US attorney with language expertise will struggle because of the vast legal system differences.

APAC Discovery: 5 Practical Tips

2. Be cautious of nationalist challenges. Strong nationalism may thwart collection efforts,

as parties question why APAC privacy considerations do not trump US discovery laws.

APAC Discovery: 5 Practical Tips

3. Capture full forensic images and conduct client interviews.

Unlike in the US where active data capture is permissible, do not risk an insufficient collection in the APAC region.

APAC Discovery: 5 Practical Tips

4. Watch for international data nuances. Multilingual software platforms generate different

metadata fields than US software platforms. Also, APAC companies tend to encrypt more than in the US.

APAC Discovery: 5 Practical Tips

5. Don’t overlook paper documents. Unlike in the US, paper documents are still heavily

used in APAC businesses.

APAC Discovery: 5 Practical Tips

Despite the differences, some things are the same in APAC eDiscovery matters:

1. Legal and IT need to be on the same page. In APAC collections, make sure the legal team has full access to the corporation’s IT team.

2. Validate technology capabilities. Despite what the service provider claims, ensure for yourself that the technology can handle multilingual data.

3. Thoroughly vet any service provider in the APAC region. Ensure they will use best practices. Ask if they capture a chain-of-custody. Inquire if they use subcontractors

APAC Discovery: Further Tips

Sedona Conference Principles

Sedona Conference Principles

Sedona Conference Principles

Parting Thoughts

Thank you to our sponsor

Presentations will be sent out with a link to the replay within 48 hours

Comments/Questions can be submitted to Jason Velasco at jason@edjgroupinc.com

Questions