In recent years, data protection regulations across the globe have constantly evolved to become more robust. Europe introduced the General Data Protection Regulation (GDPR) in 2018, and in 2021 mainland China introduced both the Personal Information Protection Law (PIPL) and Data Security Law (DSL), all highlighting the importance to process data with care. For legal practitioners, this adds another layer of consideration when gathering evidence or even more generally acquiring documents, especially when it relates to cross-border matters. They must navigate the complexities of different data security laws and ensure the security of sensitive information to strengthen their evidence in court.
As mainland China and Hong Kong join up to gradually roll out a pilot scheme to facilitate smoother cross-border data transfers within the Greater Bay Area, legal and compliance practitioners should familiarize themselves with relevant data protection laws, i.e. PIPL and DSL, and the relevant mechanisms for evidence extraction.
The PIPL governs the collection, storage, and handling of data in China, and requires data processing requirements and approval from Chinese authorities for data transfers requested by foreign judiciary. Meanwhile, the DSL also has a similar purpose, it provides a framework for classifying data collected and stored in China based on its potential impact on Chinese national security. Multinational companies are also required to have certain data protection certifications, so they need specialised regional expertise and experience to navigate effectively. The laws do not halt the e-discovery process but add layers of complexity to it which must be handled carefully.
Although China is looking to relax its rules on cross-border data transfer and issued a draft provision that might exempt qualifying foreign firms from the stringent policies for companies operating in China, there are still some uncertainties regarding what impact it might bring to lawyers.
The Rise of eDiscovery
eDiscovery (electronic discovery) has emerged as a vital component of fact-finding and evidence-gathering in today’s digital age. Its importance is underscored by the exponential growth of the eDiscovery market, which is projected to reach a value of US32ドル.5 billion by 2030. This surge can be attributed, in part, to the widespread adoption of cloud computing systems worldwide, which have necessitated the development of robust eDiscovery processes.
The process involves identifying, preserving, collecting, processing, reviewing, and producing electronically stored information (ESI) for use in legal proceedings. The sheer volume and complexity of digital data make it necessary to have structured procedures in place to ensure the integrity and admissibility of all types of electronic evidence. Regulatory scrutiny arises from the need to adhere to legal and ethical obligations while handling sensitive data, ensuring transparency, and protecting individual privacy.
In disputes or investigations, it’s important to gather all the relevant information utilising Forensic Technology and eDiscovery to ensure legal professionals meet their obligations.
How Does eDiscovery Help Legal Professionals?
eDiscovery offers benefits to legal professionals, particularly in terms of efficiency and cost savings. New tools and mechanisms have shown the potential to reduce review times by 30 up to 80 percent. Given that document review often constitutes a substantial portion of the total eDiscovery project cost, these analytical tools along with experienced eDiscovery specialists can yield significant savings.
A notable case highlighting the importance of eDiscovery is Hong Kong’s high court decision in 2014, which mandated eDiscovery for claims or counterclaims exceeding HK8ドル million and involved at least 10,000 searchable documents. Implementing eDiscovery tools in such scenarios requires a substantial investment, ranging from US100,000ドル up to US500,000,ドル with implementation times varying from two to twelve months. The availability of in-house tools becomes even more crucial for smaller companies and law firms that may not have the necessary resources, making the scoping process along with fulfilling court disclosure obligations a critical consideration.
Defining the exact parameters of the discovery phase helps prevent the over-collection of data, effectively controlling costs and complexity. It also enables better management of new information and prevents changes to the scope during ongoing investigations, which can lead to increased data volumes and additional costs.
Advanced analytics tools, such as predictive coding and technology-assisted review, have revolutionized the legal profession. These tools empower lawyers to identify relevant information efficiently, classify and prioritize documents based on their relevance to a particular case, and make informed decisions. By leveraging these technologies, legal professionals can streamline their workflows, improve accuracy, and focus their efforts on the most critical aspects of a case.
To ensure the proper handling of eDiscovery demands and challenges, several criteria must be considered. Having the right expertise in the right location is crucial, particularly when dealing with data spread across multiple jurisdictions. On-site document review capabilities are essential, as data may not be allowed to leave company premises due to company sensitivity or be hosted at an external eDiscovery service providers’ centers due to various reasons, such as patent protection and sensitive copyright matters. Moreover, possessing a base of local knowledge becomes vital when conducting internal investigations or litigations in foreign jurisdictions. Understanding local language capabilities, culture, and regulatory processes is essential for successfully navigating jurisdictional differences.
By leveraging advanced technology and implementing robust processes, lawyers can effectively manage electronic information and gain a competitive advantage in legal proceedings and regulatory matters. To maximise success, it is essential to establish clear framework in the discovery phase, carefully manage cross-border data, and maintain effective response times whilst meeting disclosure obligations.