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The Future of eDiscovery in Asia: Three Takeaways from Innoxcell Hong Kong

This year’s Innoxcell Annual Symposium in Hong Kong – billed by some as “the Legaltech of Asia” – was an eDiscovery star-studded affair, providing a platform for global legal, technology and eDiscovery thought leaders to opine on the future of the profession across the world over two full days in April.

With increased regulatory scrutiny, complex cross-border investigations and ever-evolving new forms of business communications, organizations in Asia face a plethora of legal and data challenges.

Epiq served as a platinum sponsor of the event and hosted two presentations covering the topics of anti-corruption, eDiscovery, and business intelligence.

The following are a few of the challenges facing legal and technology practitioners discussed during the event:

Multijurisdictional eDiscovery in Asia

Cross-border anti-corruption investigations are on the rise, driven by FCPA inquiries and other international, national and jurisdictional regulations. As if that landscape weren’t complex enough, the increasingly global nature of the business world means more organizations are doing business in more locations than ever before.

That means discoverable data potentially relevant to a litigation or regulatory inquiry can be located in more places – and subject to more regulations – than ever before, too. Managing that data well – before, during and after an investigation or litigation – may not be sexy, but can mean the difference between a successful outcome and an untenable, high-risk and expensive workload.

Epiq experts manage a lot of eDiscovery projects in the Asia-Pacific region – with offices and data centers located in Hong Kong, Shanghai, Singapore and Tokyo as well as throughout India, Australia and New Zealand. Most eDiscovery cases in Asia are regulatory driven, and our experts have seen an increase in anticorruption actions with both local and cross-border elements.

Electronic discovery projects in Asia face a dual challenge: Cross-border litigation and regulatory enforcement actions from the U.S. and U.K., and locally instituted court and regulatory actions. Further complicating cross-border matters are different languages, time zone barriers and differing proliferation of mobile devices and technologies used, such as WeChat and WhatsApp.

Out of the 50+ jurisdictions in Asia (excluding Australia), only Hong Kong, Malaysia, Singapore and India adopt common law systems. There is no right to discovery outside common law systems. So, there are wide differences in expectations about the scope of documentary disclosures in Asia and the budgets for them, further complicating the task of meeting regulatory requests.
 
Lastly, cross-border litigation and regulatory actions that involve a China element pose particular challenges – state secrets and other laws restrict cross-border transmission of sensitive data; Chinese parties and regulators are becoming more active in litigation and regulatory actions, respectively – so legal teams and eDiscovery providers must be familiar with applicable regulations to ensure compliance.

Normalizing disparate data for eDiscovery business intelligence

Legal practitioners that embrace new technologies and practices are finding themselves with a strategic advantage to uncovering critical insights—ones that previously didn’t surface in the eDiscovery review process.

According to the analyst organization Gartner, business intelligence is defined as the applications, infrastructure, tools and best practices that enable access to and analysis of information to improve and optimize decisions and performance.

That’s a very cerebral way of saying that business intelligence, or BI, is a way to make sense of “Big Data.” International litigation and regulatory investigations naturally involve large sets of data from disparate sources (countries, languages, data types and so forth) – so electronic discovery stands to benefit greatly from the smart application of BI.

In practice, eDiscovery business intelligence can deliver critical insights across matters on things like spend, data volumes, review ROI, and even overall discovery burdens. eDiscovery BI tools like data visualization and dashboards enable data normalization so smart practitioners can prevent over-discovery, make earlier and better case strategy decisions, and “right-size” their overall discovery process.

The bottom line for eDiscovery business intelligence? It can be used to cut costs across the discovery process, and even justify preexisting costs – a necessary step as corporate legal departments reevaluate their outside counsel spend.

eDiscovery data security and privacy

Although data security and global data privacy are often mentioned in the same breath, the two are very different but related challenges.

  • Data Privacy: There are no universal privacy standards that apply worldwide, so each jurisdiction has its own privacy standards governing the accessibility, discoverability, use and movement of individual and organizational data. These regulations are constantly evolving – the most high-profile example being the General Data Protection Regulation (GDPR). In this environment, it’s essential for any law firm or company doing business in more than one jurisdiction to stay informed about privacy regulations in each location, as well as any applicable regulations governing the movement of information outside of national borders or between countries or jurisdictions.

  • Data Security: No data is safe from the potential threat of a breach. And the data involved in regulatory investigations and litigation presents a particularly enticing target to wrongdoers. Even carelessness on the part of a single employee can result in a potentially devastating data breach, so litigators, legal technologists and compliance officers must understand data security best practices and work together to ensure that practices are followed both within the organization as well as by any vendor entrusted with the handling of sensitive data.

Sarah Brown is a legal technology thought leader with close to ten years’ experience in the eDiscovery and information management fields. At Epiq, her primary focus is on driving awareness for the company’s industry-recognized services and solutions. Prior to Epiq, Brown spent several years working for Epiq partner Exterro, building out a thought leadership and content program across eDiscovery, information management, litigation readiness, and other data-centric activities. She has a journalism background and holds a bachelor’s degree in journalism and a master’s degree in strategic communications from Columbia University. 

Filed under: compliance, cybersecurity, data breach, data protection, data security, document review, ediscovery, esi, information governance

The contents of this article are intended to convey general information only and not to provide legal advice or opinions.

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