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Tackling Multi-national Litigation and Regulation: Lessons from APAC

Abigail Cooke

In a recent study, the International Data Corporation (IDC) found the worldwide e-discovery services and software market surpassed $10 billion in 2015. The IDC forecasts that the industry will only grow from here, and by 2019, we’ll be looking at a $14.7 billion market. 

We’ve seen this growth firsthand and, in the Asia-Pacific region (APAC), it’s particularly fast. In fact, the number of APAC Relativity users has grown by 225 percent in the past year.

What’s behind the massive growth in this region? And more importantly, what does it mean for businesses across the world?

Over the past few years, we’ve had the opportunity to support customers in China, Korea, Australia, India, the Philippines, Japan, and other APAC countries. From our conversations and observations, we’ve noted a couple big challenges they’re using e-discovery software to help combat.

Challenge 1: Data Privacy in Multi-national Litigation

Litigation for corporations in APAC is not the “business as usual” activity we see in other regions. However, with more Asian corporations doing business in the U.S. and elsewhere—and vice versa—multi-national litigation is gaining traction.

Because rules on data transportation and privacy laws are notably strict in certain APAC countries, e-discovery practitioners across the globe are looking for faster, more efficient ways to overcome global data privacy and cross-border challenges.

From our observations, the portability of a review platform is being used as a key tactic in APAC to combat these challenges, and there’s an increased appetite to take up plug-and-play deployment options such as the Relativity appliance and notebook.

What this means for you:

e-Discovery is evolving at various speeds throughout APAC, and each nation within the region has its own legal paradigms and data processing and privacy laws—which complicates things further. To get an idea of what we mean, check out this interactive map from Kroll Ontrack’s “e-Discovery Goes Global: Global Trends 2016” report.

According to Kroll, Japan doesn’t currently have laws that directly address e-discovery, but the Personal Information and Protection Act of 2003 “restricts the collection, use, and transfer of personal data.” Meanwhile, in China, you can’t carry “state secrets” across the border—but what exactly “state secrets” means is a little vague.

As global litigation spreads and matters extend across seas, awareness of these differences—and keeping abreast of new developments—becomes more crucial for counsel across the world. Developing an in-depth understanding of the laws and requirements in regions where ESI is located, and even leaning on local experts for help, will go a long way in navigating e-discovery across waters.

Challenge 2: Regulation Goes Global

Over the past few years, the U.S. and other nations have extended their regulatory reach across borders, making regulation and compliance a much greater concern to countries in APAC and beyond.

The standards for regulation and investigations are of course different from traditional litigation—in the latter, a party is asked to produce all documents related to a case (with great precision in places like the U.S.) to avoid sanctions over a failure to produce evidence.

When it comes to investigations, however, an organization must typically find enough information to satisfy the regulator, rather than produce every single responsive document. We’re seeing a greater use of text analytics tools, like clustering, email threading, and near-duplicate detection, to help parties quickly identify data and comply with these types of requests.

It’s also worth noting that, from what we’ve seen, APAC’s many financial institutions—highly regulated organizations that are often involved in investigations—are big adopters of e-discovery software. As you can imagine, the bulk of their financial data isn’t from emails, Microsoft Word documents, and other sources of unstructured data. Instead, most of the information is structured data from trading systems or large CRMs.

What this means for you:

Organizations outside of APAC can take note from the way the region’s many financial institutions handle regulatory requests.

e-Discovery tools are just as effective at reviewing structured data as unstructured data—so these institutions are using the same platform and familiar workflows as they would in litigation. The ability to efficiently perform both types of review in a single platform increases efficiency, minimizes software investments, and streamlines workflows for these teams as they face a broad spectrum of data-driven projects every year.

APAC is a unique and rapidly changing region, and it will be interesting to see how e-discovery, compliance, and regulatory rules evolve in each distinct APAC country over the next few years. It will be continually important for e-discovery practitioners and corporations to keep an eye on what’s going on across the Pacific.

We’re continuing to grow our presence in the region and are staying in tune with the needs and challenges of those working in and with APAC. In fact, next month, members of the kCura team will present three sessions at the Innoxcell Annual Symposium in Hong Kong—one of the largest legal and regulatory compliance conferences in the world. If you’re in town, we’d love to see you there.

Abigail Cooke was previously an account manager in APAC at Relativity. Today, she is senior director of contract intelligence at FTI.

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