As e-discovery reaches across borders into Asia, global companies face new and often unfamiliar challenges. Whatever the nature of the case, if it involves electronic information stored in China, Japan, Korea or elsewhere in Asia, be advised: You’ll be managing case files differently than you would be if you were in the United States.
The challenges presented in managing electronic files in Asia stem from many causes—some geographical, some technical and some cultural.
In Asian countries, the laws governing data and privacy are quite different than in the U.S. For example, in China, collecting and exporting data involving “state secrets” can get you thrown in jail. In Japan, taking data out and hosting it in the U.S. may cause you to lose your client.
Language, too, presents multiple challenges. The so-called CJK languages (Chinese, Japanese and Korean) are the most difficult to process, search and review. Mangle the processing and you lose your data. Mess up the search and you may as well have lost your data. Either way, your review becomes costly and ineffective.
In an article published in the February/March 2013 issue of Todays General Counsel magazine, “Challenges of Asian Language E-Discovery,” John Tredennick, President and CEO of Catalyst, and W. Peter Cladouhos, Esq., firm-wide Practice Support Electronic Discovery Consultant for Paul Hastings LLP, outline some of the most common, and the most critical, challenges companies face when handling Asian data and keeping Asian e-discovery on track and on budget.
Join two leading authorities in international e-discovery for a free, one-hour webinar, Cross-Border E-Discovery: Meeting the Challenges and Mitigating the Risks, to be held on Wednesday, Sept. 21, 2011, at noon Eastern time.
The webinar will explore the challenges for multinational corporations engaged in cross-border e-discovery–from data privacy laws and discovery-blocking statutes to language and cultural issues–and offer tips for mitigating risk.
Panelists for the webinar will be:
- Maura R. Grossman, counsel at Wachtell, Lipton, Rosen & Katz. Ms. Grossman’s practice focuses on advising lawyers and clients on legal, technical, and strategic issues involving electronic discovery and information management, both domestically and abroad, as well as on matters of legal ethics. Ms. Grossman speaks and writes frequently on e-discovery and legal ethics and is a member of several Sedona Conference working groups.
- Richard Kershaw, Asia managing director for Catalyst Repository Systems. A fluent Japanese speaker, Mr. Kershaw has lived and worked in the Asia region since 1996. Over the years, he has successfully led forensic data management assignments in arbitration, litigation and regulatory investigations across the region, including matters in Saudi Arabia, India, Indonesia, Singapore, Malaysia, Hong Kong, China, Taiwan, the Philippines and Japan.
For more details about this webinar or to register, visit: Cross-Border E-Discovery: Meeting the Challenges and Mitigating the Risks.
Corporate Counsel magazine recently issued a report that should cause multi-national corporations and their counsel to pay attention: Trend Watch: Foreign Bribery Actions Doubled Last Year.
Specifically, the magazine reported that enforcement actions under the Foreign Corrupt Practices Act (“FCPA”) nearly doubled in 2010, rising to 76 (with complaints against 23 companies and 53 individuals). In 2009, the SEC and Justice Department brought 45 actions (against 12 corporations and 33 individuals). That number was a significant jump again from 2008 when the government brought 37 actions against companies and individuals.
The pace seems to be continuing as well. This month, Paul Hastings, one of the leading international firms advising on FCPA investigations, issued its first Quarterly FCPA Report for 2011 [PDF]. So far this year, it reports, enforcement continues apace, with actions brought against four companies and seven individuals, along with a blockbuster forfeiture and a number of guilty pleas and settlements. The forfeiture amounted to nearly $149 million and related to a high-profile arms contract case involving 22 indicted defendants. Continue reading
By John Tredennick and Larry Barela
In part one of this post, we reviewed the history of character encoding, from the development of ASCII in the early 1960s to the eventual creation of an array of different code sets to accommodate an array of different languages. The effect of all these different code sets was to create a technological Babel that made it difficult to share and process data across borders.
For a time, all this special encoding worked passably well. In the early days, people were less concerned with passing documents from country to country. E-mail wasn’t anywhere near the universal communications medium it is today. Google hadn’t been invented and facebooks were still something students passed around college dorms.
By the early- to mid-1990s, however, people started feeling the pinch of all this encoding. A group of visionaries realized that the world needed some kind of universal encoding that could go beyond ASCII and embrace all possible languages. That realization was the impetus for the consortium that developed the Unicode Standard, the modern foundation for handling foreign language documents around the world. Continue reading
By John Tredennick and Larry Barela
“There is something wrong with your system,” the angry lawyer on the phone said to Laura, the project consultant working on her case. “I am looking at the screen and all I see are a bunch of question marks and boxes,” she continued, getting more exasperated by the minute. “How am I supposed to review these documents if I can’t read the words?”
“Let me see if I can help,” Laura answered, trying to be as calm as possible. “Perhaps your computer is just using the wrong code page to display the text. If so, we can probably fix the problem with a mouse click,” she offered hopefully. “If not, there could be a problem with how your data was collected or processed.”
“A code page?” responded the caller. “What the heck is a code page?”
Our caller’s confusion was not unusual. After all, most of us went to school to study law rather than technology. Many lawyers still have little interest in knowing more about technology than how to turn on their computers. Continue reading
Catalyst CEO John Tredennick at the Tokyo data center.
As a news release today announced, Catalyst has opened a full-featured, high-security data center in Japan. The center, housed in the Equinix facility in the Shinagawa ward of central Tokyo, is designed to provide a safe haven for clients in Japan and throughout the Asia-Pacific region.
With the leading technology for multi-language search and review, Catalyst has long supported international law firms and multinational corporations in matters involving Asian-language data. Last year, Catalyst formally launched its Catalyst Asia division and opened offices in Hong Kong and Tokyo.
Catalyst has also established partnerships with a number of litigation support and data forensics companies operating throughout Asia. They include Ji2 Inc., with an office in Tokyo; LECG, with offices in Shanghai and Hong Kong; I-Analysis Pte Ltd., with an office in Singapore; D3 Forensics Ltd., with an office in Hong Kong; and Redeye Forensics, with an office in Seoul, South Korea.
As with Catalyst’s U.S.-based data centers, the Tokyo facility is highly secure and is capable of powering the heart of the litigation lifecycle, from initial processing through search, review, production and trial. Catalyst was one of the first e-discovery companies to offer true multi-language capabilities and is the only system to use full tokenization to allow language and locale selection in processing and search.
Read the full announcement: Catalyst Opens Tokyo Data Center to Serve Clients in Asia.
For U.S. corporations already wary of the Foreign Corrupt Practices Act, they will soon have an even-stricter law to contend with. In April, the UK’s new Bribery Act takes effect. Some lawyers are saying it is the toughest anti-corruption act in the world. And it applies to any corporation that conducts any business in the UK, regardless of where it is incorporated.
“The UK will reinforce its reputation as one of the least corrupt countries in the world, when the Bribery Act comes into force in April 2011,” says a Ministry of Justice announcement. “The Act will ensure the UK is at the forefront of the battle against bribery and pave the way for fairer practice by encouraging businesses to adopt anti-bribery safeguards.”
The act will create a new corporate offense of failure to prevent bribery by persons working on its behalf. Companies can avoid conviction if they can show that they have adequate procedures in place to prevent bribery.
It will also make it a criminal offence for anyone to give, promise or offer a bribe and to request, agree to receive or accept at bribe, either within the UK or in a foreign country. The measure covers bribery of a foreign official.
There is no limit on the fine that can be imposed on those who violate the act. Violators also are subject to up to 10 years of imprisonment.
The world is getting smaller. For large corporations, it is virtually certain that their operations span multiple countries. But it is no longer just large corporations that operate globally. These days, even small- and mid-sized businesses are likely to have international components.
When a business is international, then any legal matters involving that business are also likely to be international in scope. In the context of litigation or a government investigation, that means the matter is likely to involve documents in more than one language. Often, such cases will involve collections of documents in a number of different languages – or even single documents containing multiple languages.
In other words, multi-language documents are a fact of e-discovery life these days. For e-discovery professionals, processing and review of multi-language collections raise a number of issues. In this post, I want to talk about one – review workflow. Continue reading