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Ceic2009 International e-Discovery

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    • 1. International eDiscovery The Asia-Pacific, European Union and United Kingdom Comparative Patrick Burke, Seamus E. Byrne, Chris Dale and Dominic Jaar
    • 2. Agenda  Introduction  International eDiscovery  Legal Considerations  Key Jurisdictions  United Kingdom  European Union  Canada  Asia-Pacific P A G E 2
    • 3. International eDiscovery  Discovery in a foreign jurisdiction to support litigation in:  The United States; or  The foreign jurisdiction. P A G E 3
    • 4. Legal Considerations  Corporate Relationships  International Evidence Collection  Blocking Statutes  Data Protection and Privacy Laws P A G E 4
    • 5. Corporate Relationships  An order for discovery to a parent company will often involve their subsidiaries  Rule 34, FRCP  Discovery of documents or ESI “in the responding party's possession, custody or control” P A G E 5
    • 6. International Evidence Collection From United States to World and EU  From United States to World (or World to World)  Hague Convention on Taking Evidence Abroad — Party may request Court to send a Letter of Request (Letters Rogatory) to the Central Authority within a participating foreign country to compel production of evidence  From United States to the Americas  Inter-American Convention on Letters Rogatory  Within European Union (except Denmark)  EC Regulation No. 1206/2001  Last Resort - Letters Rogatory  Very slow and cumbersome, via Consular or Diplomatic channels P A G E 6
    • 7. International Evidence Collection Hague Convention  United States  Hague Convention is not an exclusive and/or mandatory avenue to obtain discovery: Société Nationale Industrielle Aérospatiale v US District Court, 482 U.S. 522 (1987) (Aérospatiale)  If the Court has personal jurisdiction over a foreign party, request discovery under local civil procedure rules prior to relying upon Hague Convention: Aérospatiale  United Kingdom  Order upheld for a foreign party to comply with discovery obligations under local civil procedure rules. Conditionally justified on the basis that the Court has a “legitimate interest in the conduct of its own judicial proceedings”: Morris v. Banque Arabe et Internationale D’Investissement [2001] ILPr 37 (CA) P A G E 7
    • 8. International Evidence Collection From World to United States  Title 28 (Judiciary and Judicial Procedure) USC § 1782(a)  The person from whom discovery is sought must reside (or be found) in the district of the district court to which the application is made;  The discovery must be for use in proceedings before a foreign court or tribunal; and  The application must be made by a foreign court, tribunal or any interested person  Intel Corp. v Advanced Micro Devices, Inc., 542 U.S. 241 (2004)  Complaint filed by AMD against Intel before Directorate-General for Competition of the European Commission  AMD recommended that the Commission request discovery of documents previously produced by Intel in a private antitrust law suit in the United States  Court upheld request P A G E 8
    • 9. Blocking Statutes  Select countries have blocking statutes which make it a criminal offense to comply with a foreign request for discovery  Offensive use of blocking statutes  Accepting an adverse inference: Lyondell-Citgo Refining, LP v. Petroleos de Venezuela, S.A., 2005 WL 1026461 (S.D.N.Y. May 2, 2005)  Discovery obligations and blocking statutes  Does not excuse obligation: Enron v. J.P. Morgan Secur. Inc., No, 01-16034 (Bankr. S.D.N.Y. July 18, 2007)  Notwithstanding, Court must balance the production of documents from a foreign party with their good faith efforts, e.g.: Restatement (Third) of Foreign Relations Law § 442(1)(c); per Société Internationale v Rogers, 357 U.S. 197 (1958) P A G E 9
    • 10. Data Protection and Privacy Laws  In many civil law jurisdictions, particularly the EU, protection of personal data is perceived as a fundamental human right  Almost all data protection and privacy laws have a general prohibition on cross-border data transfer P A G E 10
    • 11. United Kingdom P A G E 11
    • 12. United Kingdom Key Applications  “Disclosure” instead of “discovery”  International arbitration  Requests from UK and EU regulators  Financial Services Authority (FSA)  Office of Fair Trading (OFT)  EU Competition Bureau  The extended arm of US regulatory agencies and laws  Securities and Exchange Commission (SEC)  Federal Trade Commission (FTC)  International anti-bribery under the FCPA, etc.  Internal company investigations  Subject access requests P A G E 12
    • 13. United Kingdom Proportionality  Scope of disclosure obligations qualified by proportionality  Balance between evidentiary value and cost  “Less is more” technology  enables searches across entire network  enables targeted searches of employee data  collects only electronic records responsive to specific search criteria  leaves the bulk of employees’ emails and electronic files uncollected P A G E 13
    • 14. United Kingdom Revised Civil Procedure Rules (1999)  Civil Procedure Rules (CPR) removed relevance as the test  Replaced by Standard Disclosure - a party’s obligation is to disclose only  the documents on which he relies; and  those which adversely affect his own case or which  adversely affect or support another party’s case  Court may order specific disclosure of other documents  Court can widen or narrow the ambit of disclosure and direct the method  As with everything else, disclosure must be proportionate P A G E 14
    • 15. United Kingdom Document Definition  Part 31.4 CPR defines document as anything in which information of any description is recorded  2A.1 of the Practice Direction to Part 31 extends to “electronic documents, including e-mail and other electronic communications, word processed documents and databases”  Covers documents “stored on servers and back-up systems and electronic documents that have been ‘deleted” and extends to metadata (October 2005 Practice Direction at 2A.1) P A G E 15
    • 16. United Kingdom Reasonable Search – CPR 31.7, PD 2A.4  Number of documents involved and nature and complexity of the case.  Ease and expense of retrieval of any particular document, including:  Accessibility of electronic documents, “taking into account alterations or developments in hardware or software systems used by the disclosing party and/or available to enable access to such documents.”  Location of relevant electronic documents, data, computer systems, servers, back-up systems and other electronic devices or media, and the likelihood of locating relevant data.  Cost of recovering, disclosing and providing inspection, and the likelihood that documents will be materially altered in the process.  Significance of any document likely to be located during the search.  A disclosure statement is required to verify these facts – who will give this in your company? P A G E 16
    • 17. United Kingdom Reasonable Search – Pan-Enterprise “It may be reasonable to search some or all of the parties’ electronic storage systems. In some circumstances, it may be reasonable to search for electronic documents by means of keyword searches (agreed as far as possible between the parties) even where a full review of each and every document would be unreasonable. There may be other forms of electronic search that may be appropriate in particular circumstances.” (October 2005 Practice Direction at 2A.5) P A G E 17
    • 18. United Kingdom The Court  Manages the disclosure process  Has wide discretionary powers to deal with cases in accordance with “the overriding objective of enabling a court to deal with cases justly”  Rules require the lawyers to find out what exists and to discuss  and therefore require judges to understand what is said to them  New judicial interest in applying the rules to the problem P A G E 18
    • 19. UK Case Law At Last!  Digicel (St Lucia) v Cable & Wireless Digicel (St Lucia) v Cable & Wireless [2008] EWHC 2522 (Ch), [2008] All ER (D) 226 (Oct)  Abela v Hammond Suddards, Lawtel, 2 December 2008, Deputy Judge Paul Girolami QC  Hedrich v Standard Bank [2008] EWCA Civ 905 (30 July 2008)  Nichia Corporation v Argos Limited [2007] EWCA Civ 741, 19 July 2007 P A G E 19
    • 20. UK Case Law Digicel  No arguments or special directions at CMC  Unilateral decisions as to keywords – judge had different view  800 tapes alleged to be disproportionate – judge disagreed  Order 1– re-do existing searches with judge’s list of keywords  Order 2 - co-operate as to tapes – strict directions as to meetings  Heavy downside of not following PD co-operation requirements P A G E 20
    • 21. UK Case Law Abela  More than one disagreement as to the scope of disclosure  Claimants' willingness to pay does not render documents disclosable which otherwise are not  Size of case “warranted more than a nominal amount of time, effort and costs”  Electronic search ordered in addition to paper files  “Invitation” to the parties to discuss and co-operate P A G E 21
    • 22. UK Case Law Hedrich  Solicitor alerted to e-disclosure defects only in mid-trial  Wasted costs application went to Court of Appeal  Not negligent and not liable for wasted costs  Does a lower competence test really apply to small law firms? P A G E 22
    • 23. UK Case Law Nichia v Argos  Solicitors slow to understand narrowness of disclosure test  “Perfect justice” means looking under every stone  Such “perfect justice” would actually defeat justice  A lesser procedure ...may result in the justice being rougher [but] better justice is achieved by risking a little bit of injustice. P A G E 23
    • 24. United Kingdom Practical Challenges  Strong emphasis on pre-trial preparation  Front-loading of costs  Court-driven push towards settlement  Neglect of stream-lined route to a hearing  Wide discretion of judges of variable quality  No experience of or training in electronic disclosure P A G E 24
    • 25. United Kingdom Pending Developments  E-Disclosure Questionnaire  E-Disclosure Practice Direction  Lord Justice Jackson’s Litigation Costs Review  Attention paid to US and other developments  Civil Justice Council – Woolf Review – 10 years on  Upgrading regional courts P A G E 25
    • 26. United Kingdom Closing Remarks  Major law firms already deeply engaged in eDisclosure on their clients’ behalf  Companies increasingly thinking of taking the first level of the problem in house  Recent Commercial Court recommendations refer to the need for a more “surgical” approach, that is, imposing even greater refinement on parties at early stage  As in the US, companies are having to abandon or settle claims because of the costs of document-handling  Those who have their house in order are therefore at a commercial advantage. P A G E 26
    • 27. European Union P A G E 27
    • 28. Germany P A G E 28
    • 29. Germany  Conventional wisdom: There is no discovery in German courts  Parties produce their own documents that they intend to use themselves in the case.  In fact, limited discovery is provided for under s 142 of the German Civil Procedure Act (Zivilprozessordnung, ZPO):  Litigant must first obtain court approval to engage in discovery  Court will permit taking of evidence ONLY if the discovery sought is: — Relevant to the outcome of the case, and — Necessary to clarify disputed facts.  Precondition for an order under s 142 ZPO is — Plaintiff, defendant or a third party exerts factual control (possession) over the document. — A party must refer to the document in one of its pleadings (not enough to plead that such a document “usually exists”)  Electronic documents - including e-mail - must be authenticated (e.g. creation date, where it was stored, and establish chain-of-custody)  NEW! Electronic documents issued by a public authority must bear an “authentication mark” or an electronic signature. P A G E 29
    • 30. France P A G E 30
    • 31. France  Civil law  Codes and laws  Basic principle  Each party can freely decide what evidence it wants to produce  Contradictory: Each party should be given the opportunity to address every fact and argument in dispute  Each party shall disclose evidence it intends to rely upon  Closely supervised by the court  Much more limited than in the United States P A G E 31
    • 32. France Preservation  Art 145, New Civil Procedure Code (NCPC)  Allows party to request an order from the Court preserving documents and other materials essential to the resolution of the dispute  Arts 138-142 NCPC  Once proceedings commence, the parties may request that the judge order disclosure of documents retained by opposing and/or non-parties  French judges have broad discretionary power and cannot be compelled to make these orders  Requests to disclose are narrowly drawn and limited to identifiable documents P A G E 32
    • 33. France  Strauss v. Credit Lyonnais, S.A., 242 F.R.D. 199 (E.D.N.Y. May 25, 2007)  Federal District Court in New York proceeding under the Anti-Terrorism Act 1992  Bank potentially had info in relation to charity involved with terrorists  Defendant pleaded French criminal code  US Court rejected the blocking statute — (1) the importance to the litigation of the documents or other information requested; — (2) the degree of specificity of the request; — (3) whether the information originated in the United States; — (4) the availability of alternative means of securing the information; and — (5) the extent to which noncompliance with the request would undermine important interests of the United States, or compliance with the request would undermine the important interests of the state where the information is located. P A G E 33
    • 34. France  In re Advocat “Christopher X”, Cour de Cassation, French Supreme Court, December 12, 2007, Appeal n 07-83228  Sentence of a French lawyer for violating a French Blocking Statute — $15,000 — “Requesting, seeking, or disclosing in writing, orally or in any other form, documents or information of an economic, commercial, industrial, financial or technical nature for the purposes of constituting evidence in view of foreign judicial or administrative proceedings.” P A G E 34
    • 35. Canada  Common Law vs Civil Law  Positive obligation to produce all potentially relevant documents  Quebec: Mixed approach between France and USA  Common Law  Preservation  Affidavit of documents  Civil Law  Documents party intends to use  Examination on discovery with undertakings  “Preservation” P A G E 35
    • 36. The Asia-Pacific P A G E 36
    • 37. Asia-Pacific Key Trends  Asia-Pacific countries comprise 40% of the United States’ top trade partners  Diverse economic and political landscape  Combination of common and civil law jurisdictions  Inconsistent legislative reform in relation to data protection  Rise of shareholder and investor class actions  Continued shift towards alternative dispute resolution (ADR) P A G E 37
    • 38. Asia-Pacific Key Jurisdictions  Australia  China (incl. Hong Kong SAR and Taiwan)  India  Japan  Malaysia  Singapore  South Korea P A G E 38
    • 39. Australia  Based on English common law  Federal Court Rules  Modern English discovery procedure: O 15  Practice Note 14 (1999): Limited discovery and proportionality  NEW! Revised Practice Note 17 (2009): Mandated electronic exchange of discoverable documents where volume exceeds 200 and introduced pre-discovery conference  NEW! Practice Note 30 (2009): “Fast Track” directions  State Supreme Courts  Increased adoption of mandated e-discovery  Further Reading  In Pursuit of Relevance Blawg P A G E 39
    • 40. China (PRC)  Based on German civil law  Civil Procedure Law (Arts 63-74)  Each party produces documents in support of their claim only  NEW! Court may order a party to produce documents to assist the Court’s understanding  NEW! Court may threaten “unfavorable consequences” and draw adverse inference for non-compliance  “Original evidence” rule applies: Art 68  Law of the PRC on Guarding State Secrets (1989)  “Without approval by competent departments, no documents or any other material or objects classified as state secret shall be carried, transmitted, posted or transported out of the country’s territory”: Art 26 P A G E 40
    • 41. Hong Kong SAR  Based on English common law  “One country, two systems” (1997 – 2047)  Rules of the High Court  Transitional English discovery procedure with recent shift from the Peruvian Guano relevance test: O 24  NEW! Practice Direction 5.2 (April 2009)  “The parties should proceed with discovery without the need to wait for an order of the Court and try to agree on the directions for modifying discovery obligations (e.g. limiting discovery to specified issues) or on the manner of their implementation (e.g. exchanging copy documents without the need to prepare lists of documents) with a view to achieving economies in respect of discovery.” P A G E 41
    • 42. Hong Kong SAR Recent Developments  NEW! “ Arrangement on Reciprocal Recognition and Enforcement of Judgmen ” (August 2008)  Hong Kong judgments previously unenforceable in mainland China  Where a monetary judgment (not a civil remedy of specific performance, etc.) or in relation to a commercial contractual dispute  Provides the option to litigate in Hong Kong and enforce the judgment in mainland China P A G E 42
    • 43. Taiwan (ROC)  Based on hybrid PRC law  Code of Civil Procedure (Arts 341-367)  Each party must give discovery of documents they have referenced OR that support an opposing party: Art 344  Court may order a party to produce documents to assist the Court’s understanding  Court may draw adverse inference for non-compliance  Electronic documents must be printed – metadata?: Art 363 P A G E 43
    • 44. India*  Based on English common law  Supreme Court Rules  Traditional English discovery procedure: O 27  Provision for electronic documents, including e-mail: Evidence Act, ss 65A, 65B, 85B, 88A P A G E 44
    • 45. Japan  Based on German civil law  Code of Civil Procedure (Arts 220-6)  Each party produces documents in support of their claim only  Party may conditionally apply to Court for production of a document from opposing or third party: Art 221-2  Court may draw adverse inference for non-compliance: Art 224-5  “Self-use exception”: Art 220(4)(c) P A G E 45
    • 46. Malaysia  Based on English common law  Rules of the High Court  Traditional English discovery procedure: O 24  Electronic documents are typically certified: Evidence Act, s 90A P A G E 46
    • 47. Singapore  Based on English common law  Rules of Court  Modern English discovery procedure: O 24  Electronic documents are typically certified: Evidence Act, s 35  Banking Act  “Customer information shall not, in any way, be disclosed by a bank in Singapore or any of its officers to any other person except as expressly provided in this Act”: s 47  Penalty: SGD$125K+ or 3 years imprisonment  Further Reading  The Electronic Discovery Primer, Law Gazette (March 2009) P A G E 47
    • 48. South Korea  Based on German civil law  Civil Procedure Regulations (Arts 105-125)  Each party produces documents in support of their claim only  Party may conditionally apply to Court for production of a document from opposing or third party: Art 110  Electronic documents must be printed: Art 120 P A G E 48
    • 49. Thank You Patrick Burke Guidance Software, Inc. Seamus E. Byrne Lawyer (Australia) Chris Dale eDisclosure Information Project (UK) Dominic Jaar Ledjit Consulting (Canada) P A G E 49