Page 10 - E-Discovery

S10 | MONDAY, OCTOBER 6, 2014 | E-Discovery
| NYLJ.COM

Global Platform
obligations to produce data in one country and monitor the process abroad until trust can processing and review decentralized.
the need to refrain from processing or trans- be developed. In addition, in many locations Importantly, maybe the massive regulatory
ferring the data where it is located. See The where U.S.-style litigation is not the norm, investigation would justify the cost and bur-
« Continued from page S3
Sedona Conference, International Principles the vendors have very immature process- den of standing up and individually supervis-
legal separation of afiliate organizations and on Discovery, Disclosure & Data Protection, ing, hosting and review protocols that do ing individual vendors and processes in each
increased the amount of information avail- p. 12 (December 2011) (available at https:// not take advantage of the eficiencies more jurisdiction (including all the contracts and
able. It also has enlarged the amount of data a thesedonaconference.org/download-pub/495), experienced vendors have developed.
data transfer agreements), but the same data
party may need to retrieve from third parties The Article 29 Party WP 158 Opinion, p. 10. One and discovery obligations could befall the

(e.g., marketing and business consultants).
solution, of course, is to process and review the Standardized Global Platform and Process
company in a much smaller manufacturing
Coordinated and follow-on litigations in data in country and in compliance with local or design defect case in the United States, but
multiple countries. A growing challenge is laws in each case that requires it. This custom- Data is everywhere and potentially sub- the exposure would not be nearly as signii-
the need to produce similar data for similar ized approach, however, does not provide a ject to discovery everywhere. Centralizing cant. While proportionality is a core principle
or coordinated proceedings in multiple juris- strategic solution across the portfolio and is the entire process in one location is not the of U.S. discovery, in the new global economy,
dictions. It is more than merely comparing hard to scale as the number of cases in these solution, but decentralizing it and managing the size of the matter does not dictate any-
the document requests and providing the jurisdictions increases. Moreover, with this it everywhere is not the solution either. So more where the data is located or how far one
appropriate documents. Given the different more disparate approach to discovery, come what is the answer?
might have to travel to collect it. Considering
discovery, production and privilege stan- real challenges to ensure consistent process, A global discovery platform—one where these issues strategically will allow companies
dards, companies need to coordinate closely quality and defensibility.
substantially the same processes, technol- to develop a global discovery platform to
their representations and productions.
Second, even if it is legally permissible to ogy and protocols are in place in all the key manage their discovery data lows even in
move the data to the production jurisdiction jurisdictions (or at least many of the key juris- medium and smaller cases.
to process, cull and review the data, the com- dictions and regions)—provides the best of Moreover, a global discovery platform,
Why Not Collect Globally, Process Locally?
pany may have business and strategic reasons both a centralized and decentralized solutions with robust standardized data centers in key

The decentralized creation and storage for moving as little data into the production without many of the drawbacks while at the jurisdictions and regions, allows companies
of documents across multiple jurisdictions jurisdiction as possible. The company may same time allowing for lexibility. A global to move data, where permissible, to take
does not just complicate the identiication, be fearful that it damages their jurisdictional platform with data centers in key jurisdic- advantage of the global document review and
preservation and collection of relevant infor- defenses or makes more data available to the tions allows data to be processed either “in data center market. Across an entire litigation
mation—inherently local tasks that need to be discovery process than otherwise would be jurisdiction” or in a location that is legally portfolio or even just in the biggest cases, this
undertaken in the documents’ native environ- available. A company may not want to move permissible. A global platform with data can lead to signiicant savings in reviewer
ment—but impacts every aspect of discovery data into a jurisdiction because it may increase centers that all are running the same search costs. In principle, we have seen this on a
going forward. As a lawyer representing a the chance that the data will be subpoenaed engines, TAR tools, security protocols and regional basis when U.S. lawyers use “farm-
client before a local court, the initial reac- from a third party (including its law irm or hosting software, allows for a “uniform” stan- shoring,” by reviewing the data in locations
tion may be to ind the data that is far away e-discovery vendor). Or, a company may be dardized process that can easily be described where contract reviewers are less expensive
and bring it closer for inspection and review. fearful that once the data is placed in a juris- to an opponent or a judge and is simpler to or in the U.K. and Europe, where law irms
This is logical—it is what we often did when diction that it may have a hard time getting manage than diverse, customized platforms.
have created review centers in Northern Ire-
we found boxes and data spread across the it out again or that by increasing the number A global platform with data centers running land and Scotland. With the right platform
United States—but it does not scale globally.
of copies of data around the world that it the same tools provides lexibility. Where per- (and where legally permissible), data could

First, many countries, including the Unit- will have a more dificult time managing its missible, companies can pool data to a single be stored in centers in Europe, Canada, and
ed States, have a variety of regulations that information governance program. Finally, as centralized location for easy supervision and Australia and could be accessed remotely by
restrict the ability of companies to move data discussed above, there may be political or take advantage of economies of scale with reviewers in South Africa, the United States
from one country to another. For example, in public relations reasons that companies do reviewers. On the other hand, in cases where and Singapore. Depending on the data, the
the member states of the E.U., regulations to not want to transfer more data than necessary a company wants to carefully compartmentalize applicable regulations, and the matter, a com-
protect the Personal Data and Sensitive Data into a jurisdiction. For example, in the wake their data, they can process, cull and review pany can leverage different language, techni-
of individuals (and even companies) restrict of the revelations by Edward Snowden, some the data in several locations and while applying cal and legal expertise across the globe in a
the ability of companies to not only process companies have become reluctant to move the same processing, search terms and TAR single robust, describable discovery process.
(e.g., use, retain, search, collect, disclose) unnecessary data into the United States for process across the entire data set. For example, Creating a global discovery platform,
such data, but to transfer it to countries fear that it would be subject to more potential imagine a company headquartered in France, however, does not require huge costs and
that do not have similar data privacy laws espionage from the NSA.
but with sales and operational facilities in the a massive capital outlay. Like developing
(e.g., the United States) See, e.g., BrightEdge The reverse, however, is not a good solu- U.K., the United States and Singapore as well as a strategic discovery process, it should be
Techs. v. Searchmetrics GMBH, N.D. Cal., No. tion either. Processing and reviewing docu- manufacturing facilities in China and Germany. focused on a few key practical points and
3:14-cv-01009-WHO, 2014 WL 3965062, Article ments in multiple jurisdictions for the same If a massive regulatory investigation occurs in built and implemented in phases:

29 Data Protection Working Party Working dispute(s) creates a whole other set of con- China and France with civil litigation in the Unit- • Focus on the discovery process irst and
Document 1/2009 on Pre-Trial Discovery for cerns. With U.S. courts and regulators both ed States, the company could easily ind itself the technology second.
Cross Border Civil Litigation, 2009 WP 158 in the United States and abroad scrutinizing having to determine if it has relevant documents • Try to limit the number of process and
[hereinafter Article 29 Working Document]. every phase of document discovery, ensuring in each of the jurisdictions where it has ofices hosting vendors and tools. Otherwise, you
Many E.U. countries also have other laws, like quality across the discovery process is a key and producing some amount of data in France, make it dificult to standardize and increase
blocking statutes and telecommunications ingredient. The more a company decentralizes China and the United States. Moreover, for a the complexity of the logistics.
laws, that limit the ability of data to be collect- the process and the more players, vendors variety of legal and geo-political reasons, it may • Leverage or partner with private or semi-
ed, used or transferred. Law concerning the and parts are introduced into the discovery want to transfer as little data as possible (that private cloud environment to maximize secu-
Communication of Economic, Commercial, system, the more dificult it is to maintain is not already there) into China and the United rity and scalability.
Industrial, Financial or Technical Documents reasonable quality. This leads to bespoke States, but not be legally capable of processing • Do not build the entire platform at once.
or Information, Law No. 80-538, 1980 Jour- solutions at numerous sites in multiple juris- or transferring certain data from China (because Focus on key jurisdictions or regions and
nal Oficiel de le Ŕpublique fraņaise [J.O.] dictions, which not only create additional of state secrecy laws) or the U.K., Germany or grow from there. Make sure your technology
1799 (July 16, 1980); Telecommunications Act costs on the ground, but increase the cost of France (due to data protection regulations). partner has a similar vision and road map.
(Telekommunikationsgesetz—TKG) of 22 June supervision and logistics across the discovery With a global platform with data centers only • Make sure the intra and inter-company

2004 (Federal Law Gazette (Bundesgesetz- process. With multiple, unafiliated vendors in China, the United States and France, the contracts and controls in place to allow for
blatt—BGBl) I p. 1190). In China, there are it is hard to standardize processing, hosting company likely could permissibly process a the appropriate data lows within the platform
state secret laws that limit the ability of even and review protocols and there is no way to review of the majority (if not all) of the data it and between your company and the platform.
private companies to transfer out of China or leverage the knowledge developed and data needed to, but also simultaneously minimize • Get buy-in to limit exceptions to using
disclose to third parties certain information collected from one case for use in another cost, logistical burden and maximize the defen- the platform. Internal and external stakehold-
(e.g. certain inancial information). Wultz v. case. Even where a company and its litigation sibility of the process through standardization. ers will want to do what is easiest or most
Bank of China, 942 F. Supp. 2d 452 (S.D.N.Y. team have a robust, well-considered discov- The “produced” data would eventually need to comfortable for them and play havoc with
2013); Richmark v. Timber Falling Consultants, ery process in one jurisdiction (such as the be transferred to the “end” jurisdiction, but the your standardization.
959 F.2d 1468 (9th Cir. 1992).
U.K. or United States), simply implementing company controls how much data enters each Information is global. Discovery and inves-
Commentators and courts have wrestled that same process and standards with new jurisdiction and it can weigh the risks of moving tigations are (and will be) global. These fac-
with this issue on the tactical level, consider- local counsel and vendors can be daunting unnecessary data to a certain jurisdiction as tors drive the need for a global platform and
ing how to resolve the tensions between the
and require additional discovery expenses to
well as the costs and beneits of keeping the
process.