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E-Discovery | MONDAY, OCTOBER 6, 2014 | S3

Understand the Importance

Global Discovery Platform
Of a

is that a company’s data often moves outside
BY DAVID J. KESSLER
a company’s own systems and locations to
AND ANDREA L. D’AMBRA
diverse locations both foreign and domestic.
JOutsourcing the business function does not
ust as the economy is global, litigations necessarily outsource the obligation to pro-
and investigations are now global and vide information from that function—an issue
they require global discovery processes, often overlooked by the contract between the
technology and personnel to support them. two parties. Companies are often shocked
In even small- and medium-sized matters, to ind that their outsourcing partner stores
data may need to be collected from multiple their data overseas.
jurisdictions (sometimes from multiple conti- Fluidity of data. The luidity of data facili-
nents). Additionally, a growing trend of coor- tates globalization and increases the chances
dinated litigation and investigations across that relevant data is somewhere else. Unless

countries requires productions to multiple a concerted effort is made, information and
different opposing parties under different data do not respect geo-political borders.
regimes and standards. Thus, as companies Increased mobility of employees and the CK
try to manage the discovery risk associated increased use of mobile devices. In today’s STO
with their dispute portfolio they more and business environment, users increasingly turn BIG
more need to be prepared to preserve and to mobile devices to access company data
collect from numerous locations; reasonably and accomplish day-to-day tasks. While these
process and review the data; and produce in The decentralized creation and storage of documents across mul- devices’ small size and versatility make them
several other locations.
tiple jurisdictions does not just complicate the identiication, pres- ideal for computing on-the-go, this means that
While this issue is becoming more preva- as the workforce gets more mobile, employees
lent and more complicated, global discovery ervation and collection of relevant information but impacts every are working out of multiple jurisdictions and
is not new and even in the days before elec- taking data with them.
tronic documents, companies sometimes had aspect of discovery going forward.
The rise of “matrixed” organizations. As
to collect records in multiple countries. How- companies expand operations to other coun-

ever, simply picking up and moving data for tries, they often develop a more matrixed-type platform in order to respond to their new big- a number of reasons, including:
the purposes of litigation is no longer viable. organization wherein multiple people from one ger information footprint in a cost effective Globalization. By chasing customers and
Thus, the ideal solution must provide both corporate entity have dotted line reporting and compliant manner.
markets (or low cost operation centers)
standardized data processing and review obligations to persons in afiliated corporate around the world, companies are putting
capabilities as well as decentralized data cen- entities. This cross-jurisdictional collabora- ‘Litigate Local, Discover Global’
employees and agents in more and more
ters and review facilities. This can require a tion increases eficiencies and productivity, countries. This creates data and documents
follow-the-sun platform with technology and but it spreads data across the globe. When In today’s litigation landscape, multination- in more and more places and increases the
processes that understand the various data that data later becomes the subject of litiga- al companies are inding that even relatively chance that relevant documents are going
protection and state secrecy laws in play that tion, unravelling who has possession, custody low dollar local disputes implicate data across to be located in a different jurisdiction than
can limit the transfer of data, but also can and control of the data, and where the data the globe. In the United States, a requesting the dispute.
take advantage of the global marketplace must be processed can be very complicated.
party, whether it is a civil opponent or a Increased use of the cloud. Companies
for hosting, analyzing and reviewing data Expansion in the scope of possession, government regulator, is usually entitled to in the digital age increasingly leverage cloud
to ensure the most cost effective solution custody and control. In the United States, it the relevant information that is in the pos- storage because of its scalability, versatility,
possible. While a company’s business should appears that certain circuits and state courts session, custody or control of the producing ease of access and lower cost. Many compa-

not be to litigate, as companies spread out are moving away from the traditional “legal party. The Sedona Conference, International nies, however, do not truly know where their
across the globe to reduce operational costs right” test and moving to a broader “practical Principles on Discovery, Disclosure & Data cloud data is physically located, or consider
and ind new customers and markets, they ability to obtain” test. Cf. Wacho- » Page S10 Protection, p.12 (December 2011) (available at how that location might impact their ability
should globalize their discovery process and
via Securities v. Loop, No. 05 C 3788, 2008 https://thesedonaconference.org/download- to access the data for litigation purposes.
WL 2625907, at *1-2 (N.D. Ill. June 27, 2008) pub/495); In re Global Power Equip. Group, 418 Increased outsourcing. In recent years,
and In re NTL Sec. Litig., 244 F.R.D. 179, 195- B.R. 833, 841 (Bankr. D. Del. 2009). This has increasingly companies outsource non-essen-
DAVID J. KESSLER is a partner and ANDREA L. D’AMBRA 97 (S.D.N.Y. 2007). This apparent expansion led to companies needing to produce more tial functions in an effort to streamline busi-
is senior counsel at Norton Rose Fulbright in New York.
has increasingly degraded the » Page S10
and more data from foreign jurisdictions for
ness operations. A by-product of this move

Inside
E-Discovery

SS
S4
International Arbitration S6 Proposed Rule Changes S8 Eliminating Asymmetrical
And E-Discovery:
Shorten and Streamline Discovery to Resolve
Rising to the Challenge Pretrial Discovery
Disputes on the Merits
Kris Fischer, Editor-In-Chief
BY LORRAINE BRENNAN
BY EDWIN M. LARKIN
BY GEORGE A. ZIMMERMAN
Angela Turturro, Sections Editor

AND GIYOUNG SONG
Rafal Pytel, Design
SS

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