Is Intellectual Property Litigation Behind eDiscovery’s Explosive Growth in Asia?
There are no legal requirements for eDiscovery, or indeed any discovery, in the People’s Republic of China (PRC) or Japan. Even still, Transparency Market Research forecasts the overall revenue in the global market for eDiscovery services and platforms to rise at 16.2% CAGR through 2022. And while North America still dominates the industry, Asia-Pacific is swiftly overtaking it in terms of growth rate.
On its face, the growth of electronic discovery projects in Asia may seem puzzling. However, demand for eDiscovery services isn’t driven by local litigation, but instead by cross-border actions, internal investigations and regulatory enforcements – including IP litigation. Out of 50+ jurisdictions in the Asia-Pacific region, only Hong Kong, Malaysia and Singapore are common law-based with discovery procedures.
“Both the world's biggest economies after the United States, China and Japan have not traditionally been big players in the e-discovery market,” Rhys Dipshan recently wrote in Legaltech News. “But with an increasingly global economy, the advent of national cybersecurity and data localization laws, and growing international M&A activity, these two economic titans are steadily growing their e-discovery operations and expertise.
IP Litigation and eDiscovery in China
We are seeing growth in IP litigation driving eDiscovery. Patent enforcement in China has evolved to a point where it is relatively fast and cheap compared with the US – an infringement claim in China usually takes less than a year to reach trial and involves a more limited disclosure process, with specialized IP courts experienced in this patent infringement handling such disputes. This should lead to growing confidence in enforcing claims in the People’s Republic of China (PRC) or against PRC parties for alleged infringements.
IP Litigation and eDiscovery in Japan
IP litigation can potentially be a main driver for eDiscovery in Japan in the near future; while not very active at this stage, we are seeing growth in IP-litigation driven eDiscovery, especially International Trade Commission (ITC) litigation. Corporations in Japan are now making a greater effort to learn about eDiscovery practices in the US, and it is predicted that IP disputes and product liability lawsuits are two important areas where eDiscovery can make inroads in the near future. This could be due to the prevalence of the manufacturing and technology sectors in Japan.
What APAC Companies Look for in eDiscovery Providers
Generally, both the PRC and Japan are seeing the following demands:
- The need of in-country and/or onsite electronically stored information (ESI) processing solutions and document reviews (due to data protection laws; data privacy and cross-border data transfer restrictions)
- More consultative approach needed in eDiscovery project management than in U.S. due to Chinese and Japanese companies' lack of experience in eDiscovery and small team size of most in-house and external counsel teams
- U.S. facing productions for Asian matters, such as FCPA or SEC investigations, ITC litigation, etc. involving Asian companies or foreign companies in Asia
- Robust workflows in-country to support multinational Chinese or Japanese corporations
- Multilingual capacities of vendors
- Multi-jurisdictional qualifications of document reviewers
- Vendors with global presence; ability to provide one stop shop project coordination and service provision across offices in multiple countries; vendors with strong networks of local partners and law firms for referrals
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