eDiscovery in Asia: What U.S. Legal Professional Need to Know

1. eDiscovery in Asia: What U.S. Legal Professional Need to Know Webinar Sponsorship Partner

2. Moderator Jason Velasco is an electronic discovery industry veteran with more than 15 years of experience in electronic discovery issues and forensic investigations. During  Mr. Velasco’s tenure as one of the founders of Renew Data Corp, Vice-President of Client Services at Merrill Corporation, and  Director in the Forensic Technology practice at KPMG, he conducted more than 350 computer forensic examinations for civil litigators and companies.  Mr. Velasco is a leading computer forensic specialist providing expert witness services related to electronic evidence topics and data preservation issues, especially in spoliation matters.  Mr. Velasco has also conducted more than 700 CLE courses on topics such as eDiscovery, document retention, preservation archiving, collection methodologies, email archiving and compliance, effective communication with IT, and the technical aspects of electronic evidence. Jason Velasco

3. Panelists • Regional Managing Director of Kroll Ontrack’s Legal Technologies unit in Asia Pacific. • Native of Hong Kong – fluent in Mandarin and Cantonese. • New York lawyer educated in New York City with practice life starting out on Wall Street. • 8 years combined at Kroll Ontrack eDiscovery Consulting, Client Relationship, and Case Management experience – most recently 5 of such years in Asia assisting US Multi-Nationals and Asia based companies doing business in the US. • Advisory role for Asia based clients defending Antitrust investigations and actions. Kate Chan

4. Agenda • Overview of Global eDiscovery • Guidance on APAC eDiscovery • Transoceanic Transfer Tips • Sedona Conference Principles • Parting Thoughts and Q&A

5. Overview of Global eDiscovery • Discovery of documents and electronic information abroad is an increasingly important part of litigation Growing awareness of e-discovery issues in Europe and Asia will drive growth in these regions… the U.S.’s share of total [ediscovery] revenue will decline from 81% in 2012 to less than 70% in 2017. “ “ Gartner, Magic Quadrant for E-Discovery Software June 10, 2013

6. Challenges of Global eDiscovery • Problems with foreign discovery are driven by fundamental differences in legal systems and privacy/data protection laws • U.S. courts may be unfamiliar with, and take a dim view of, foreign law • Laws and practices are quickly evolving across the world

7. Guidance on APAC eDiscovery

8. eDiscovery Approaches | The U.S • Can get discovery of documents in “possession, custody, or control” • Duty to preserve with sanctions on the backend • Duty to respond to requests for discovery • Scope is broad: information that is relevant or may lead to relevant evidence • Well-defined concept of litigation hold • Less emphasis on data protection and personal privacy

9. APAC eDiscovery 2013 eDJ Group Asian eDiscovery Survey

10. APAC eDiscovery 2013 eDJ Group Asian eDiscovery Survey

11. Types of APAC eDiscovery Cases 2013 eDJ Group Asian eDiscovery Survey

12. Global E-discovery: APAC Summary

13. eDiscovery Approaches | Hong Kong

14. eDiscovery Approaches | Singapore

15. eDiscovery Approaches | Singapore

16. eDiscovery Approaches | South Korea

17. eDiscovery Approaches | Japan

18. Transoceanic Transfer Tips: Technology • Multiple jurisdictions now encourage or require parties to discuss proportionality, use technology and cooperate with opposing parties to • Ensure that only data strictly necessary for legal proceedings is transferred out • Locate, reduce and review relevant evidence defensibly and efficiently • Reduce cost and justify efforts • Ensure the scope of the search is proportionate to the case at hand using technology

19. Transoceanic Transfer Tips: Further Guidance • Meet and confer or take early 30(b)(6) depositions to find location of data • Ensure consistency and multilingual compatibility among technologies • Complement technology capabilities with personnel where applicable (consider hiring foreign counsel and translators) • International Document Review through SaaS platform: questionable if this qualifies as a transfer

20. 2013 eDJ Group Asian eDiscovery Survey; n=66

21. 2013 eDJ Group Asian eDiscovery Survey; n=67

22. APAC Discovery: 5 Practical Tips • eDiscovery in APAC is more than just translation. • Even a US attorney with language expertise will struggle because of the vast legal system differences.

23. APAC Discovery: 5 Practical Tips • Be cautious of nationalist challenges. • Strong nationalism may thwart collection efforts, as parties question why APAC privacy considerations do not trump US discovery laws.

24. APAC Discovery: 5 Practical Tips • Capture full forensic images and conduct client interviews. • Unlike in the US where active data capture is permissible, do not risk an insufficient collection in the APAC region.

25. APAC Discovery: 5 Practical Tips • Watch for international data nuances. • Multilingual software platforms generate different metadata fields than US software platforms. Also, APAC companies tend to encrypt more than in the US.

26. APAC Discovery: 5 Practical Tips • Don’t overlook paper documents. • Unlike in the US, paper documents are still heavily used in APAC businesses.

27. APAC Discovery: Further Tips Despite the differences, some things are the same in APAC eDiscovery matters: • Legal and IT need to be on the same page. In APAC collections, make sure the legal team has full access to the corporation’s IT team. • Validate technology capabilities. Despite what the service provider claims, ensure for yourself that the technology can handle multilingual data. • Thoroughly vet any service provider in the APAC region. Ensure they will use best practices. Ask if they capture a chain-of-custody. Inquire if they use subcontractors

28. Sedona Conference Principles

29. Sedona Conference Principles

30. Sedona Conference Principles

31. Parting Thoughts

32. Questions Thank you to our sponsor • Presentations will be sent out with a link to the replay within 48 hours • Comments/Questions can be submitted to Jason Velasco at jason@edjgroupinc.com