December 4, 2012
In this next series of blog posts I want to address the increasingly common cross-border litigation and how the response to electronic discovery (“e-discovery”) differs among civil and common law jurisdictions. Businesses across the world employ computer technology in their daily operations and the challenges they confront are often uniform with respect to the collection, review, production, and overall management of e-discovery – irrespective of the forum or national venue. The global hurdle of e-discovery will undoubtedly continue as the utilization of cloud-based computing replaces traditional local infrastructures.
The international business community confronts significant obstacles with the differing parameters of electronically stored information (“ESI”) across major legal forums, including divergent rules governing the use and pretrial exchange of that data, whether in a litigation or an arbitration context. There is a rapidly growing need for the global legal community to uniformly implement a process for handling ESI in order to effectively build confidence in a modern global market where disputes arise between foreign parties on a daily basis.
Modern commercial litigation demands guidelines to specifically direct parties how to uniformly collect, review, and exchange ESI consistent with best practices such as the methodology presented by the Electronic Discovery Reference Model (“EDRM”) and The Sedona Conference International Principles on Discovery, Disclosure & Data Protection: Best Practices, Recommendations & Principles for Addressing the Preservation Discovery of Protected Data in U.S. Litigation (“The Sedona Principles”). (subscription required for download) There is a clear need for communalizing the international exchange of ESI in both judicial and alternative dispute resolution proceedings.
Historically, case law guided litigators in common law jurisdictions as to how ESI should be handled during civil litigation. The present U.S. response to the growing e-discovery conundrum was to draft a series of dedicated rules of civil procedure addressing ESI in civil litigation. The federal government promulgated certain provisions amending the Federal Rules of Civil Procedure (“FRCP”) concerning the pretrial exchange of ESI. But not every country interprets evidence in the same way, even across other common law jurisdictions, and the means by which counsel approaches cross-border disputes can be affected by different interpretations of adequate discovery.
In the following blog posts I will discuss the global evolution of e-discovery and ESI, including how major legal forums around the world have handled e-discovery. I will also suggest a potential uniform approach to cross-border e-discovery, including methodologies such as “predictive coding” and leveraging central data repositories in order to mitigate inconsistent forum-dependent regulatory complications.