Cross-border discovery was a minority interest when I started talking about it several years ago. It has now become a dominant subject as ai growing number of jurisdictions adopt data protection and privacy laws, as international trade increases, as more and more companies have shared ownership across borders and as regulators increasingly look at the global picture, not least of fraud and corruption.
FTI Consulting has feet in all the relevant jurisdictions and has been producing good advisory material, both written and in webinar form in recent months.
One was published in November of last year with the title Lawyers Beware of China’s Thorny Privacy Laws. My original web link to this has expired, and it is good to have another opportunity to uncover it. Written by Richard Kershaw of FTI and Michael Vella of the Shanghai office of Jones Day, this article took us well beyond the easily-made observation that China is very protective of its state secrets.
It explores four different scenarios – personal data on company devices, case-sensitive data on personal devices, the export of financial data to the United States and only then the fact that case data may include state secrets. When collecting data in China, the article says,
nobody knows what the data include until they are reviewed. Thus, counsel needs to implement a due diligence protocol to mitigate the risk of unintentionally violating the State Secrets Law.
A more recent article by Richard Kershaw, published last month, expands on the difficulties in the region. This title is A Catch-22 in Asian eDiscovery which describes the central problem thus:
If organisations provide personal information in response to US and EU subpoenas, they could be confronted with fines and criminal prosecution in many Asian countries. If companies don’t, they could be subject to sanctions in the United States and Europe.
The problem is getting no easier, Richard Kershaw says:
The US government is quite unsympathetic to the bind its investigations can put companies in.
As the article goes on to make clear, the problem is not created solely by US regulators, still less by US litigation, plentiful though that may be. Regulators in Hong Kong and Singapore, the article says, are “becoming quite aggressive” whilst “the Chinese government also is flexing its regulatory muscle”.
Richard Kershaw puts the solutions under three main headings – know the laws, know the technology and be prepared. It is clear from the rest of his article that these steps are merely the starting point for understanding and dealing with Asian eDiscovery in a practical, as well as a lawful, way.
Lastly, for the moment at least, FTI has presented a Global eDiscovery Series of webinars which looked separately at cross-border issues in Latin America, Europe and Asia. I took part in two of them. If you want an easily accessible guide to cross-border eDiscovery issues around the world, this series is a convenient way of getting it.