This week, I attended and spoke at InnoXcell’s Asia eDiscovery Exchange. Jeffrey Teh at InnoXcell gathered a great group of speakers and an audience of active eDiscovery and investigatory professionals. Conferences are great when the audience asks hard questions and the attendees here certainly weren’t afraid to speak up. It is great to see the interest level in eDiscovery and Information Governance (IG) rising in Asia.
I had the pleasure to speak with Craig Carpenter of Recommind about IG and how eDiscovery practices like Technology-Assisted Review, predictive coding, and Early Case Assessment are laying the groundwork for more efficient IG. Chris Dale of the e-Disclosure Information Project and Allison Walton of Symantec joined me to talk through the very real challenges that social media presents for eDiscovery. The audience questions from both sessions gave me much to think about and I realize we have a lot of work ahead (this is good news for anyone wanting to work in the eDiscovery and IG markets).
Another sign of a good conference is when you learn something completely new and realize what a big issue it is. There was much discussion about the practice of eDiscovery in Asia Pacific. Hong Kong itself does not have a specific rule mandating eDiscovery in all cases, but does have a technically savvy environment that allows cooperation in legal matters. And there are qualified professionals to conduct eDiscovery as needed. In the United States, we are used to the broad mandates of the Federal Rules of Civil Procedure (FRCP). For many companies wishing to do business in the US, they must abide by the FRCPs even if it means violating local privacy policies. But, in China, this issue is exacerbated by the fact that the Chinese government can declare any information a state secret and thereby forbid it leaving the country. Some of the forensic examiners expressed their nervousness about being stuck in the middle between a US company wanting certain information for a case and the very real possibility of being detained by Chinese authorities if they try to leave the country with that information.
The examiners in such a position would appreciate more understanding from US counterparts. In reality, the solution will likely have to be a diplomatic one – and there are certainly political implications when two super power’s rules collide head on. For the near term, US lawyers will need to be more proactively cooperative with Asian-based investigators. The folks at the Hong Kong conference were surprised that this issue is not higher on the radar in the US. Therefore, I’m writing about it now and hoping readers will either comment on this article here or email me at firstname.lastname@example.org with thoughts on the issue. I know I’m looking forward to watching the evolution of the eDiscovery market in Asia.