CD: Could you describe the general environment for companies that need to conduct e-discovery in China?

Earnshaw: The global business environment has evolved over the past 10-15 years as companies increase their global footprint. This global expansion into new geographies has been followed by disputes and investigations in these new jurisdictions. Organisations are dealing with litigation and regulatory interventions in many regions for the first time.

Gosalia: E-discovery in these new jurisdictions can be very different than in the United States. When companies have e-discovery issues, they also face data privacy, data protection, cultural issues and more. For example, in the United States, an employee’s work computer is exactly that. Most people do not store personal information on their work computer and those who do understand that it may not remain private. In China, employees use their work computers for everything.

Earnshaw: These types of cultural differences can have a very significant impact on how best to handle document collection and review, as well as how the employees involved may view their employer afterwards. There are major differences in the US, Europe and Asia in employee’s attitudes towards privacy and their devices. Legal teams must be cognizant of the different employee perspectives and should not try to utilise a single approach globally.

Kershaw: These types of scenarios are likely to increase as well. We are entering a period of increased regulatory activity, both from ‘local’ regulators in the Asia region and offshore such as the US and EU. This is occurring at the same time as rules on handling and export of data are being strengthened, including in China, which has some of the most stringent rules on data export. We now live in a world where there are strong legal compulsions to export and produce data and equally strong legal requirements not to.

Oct-Dec 2014 issue

FTI Consulting