Cope With Complex Asian Issues Affecting E-Discovery By Using A Full-Service Provider

Thursday, April 18, 2013 - 11:30

The Editor interviews John Bace, Member, Advisory Board, UBIC.

Editor: Tell us about your background and why you were attracted to UBIC.

Bace: Until I retired from Gartner in 2011, I was a research vice president. I headed up the compliance and risk management research community with a team of about 80 analysts, who tracked compliance and risk management strategies and technologies. My area of expertise is looking at the public policy impact of information technology on privacy laws, Sarbanes-Oxley, Dodd-Frank and things of that nature. I’ve been in the IT industry for over 30 years. Before that, I spent 11 years as a journalist with United Press International and CBS News covering local government here in Chicago, and in Springfield, Illinois. I then covered the Illinois congressional delegation in Washington, DC for a while. Those assignments taught me how to cover public policy.

I was attracted to UBIC because it not only has unique proprietary technology that enables it to find and accurately translate information in Chinese, Japanese and Korean (CJK) character formats for discovery in litigation, it also has experienced people who are aware of the cultural issues in those countries, and it has data centers in Korea, Japan and Taiwan.

Editor: UBIC is to be complimented on the excellent panel that it presented at the recent LegalTech® in New York. The large room was packed.  Obviously, there is great concern by corporate counsel and their law firms in coping with cross-border e-discovery, particularly in view of the business growth in the Far East, the large and growing number of subsidiaries of Far Eastern companies located in the U.S and the soaring trade with the Far East. Have you received communications from the panelists illustrative of their interest?

Bace: Marla Bergman, who is vice president, assistant general counsel, Legal and Regulatory Proceedings of Goldman Sachs, mentioned, “It is important to choose outside counsel that is experienced with international litigation.”

Scott Carlson, a partner at Seyfarth Shaw and chair of its eDiscovery and Information Governance practice, commented that “the required meet-and-confer not only enables both parties to understand the scope of e-discovery, with international e-discovery, it can also help both parties frame the challenges for the court.”

Jon M. Talotta, a partner at Hogan Lovells, remarked, “International eDiscovery is very much about think global and act local. That means react to the requirements of the U.S. courts and their discovery requirements while taking into account the local laws regarding privacy and information disclosure.”

Editor: Describe how the trend toward corporate information being located in scattered digital archives across different locations in multiple countries is being dealt with.

Bace: A growing number of companies have multiple matters in multiple jurisdictions. Instead of trying to have each and every law firm retained by them keep a company’s information in its own unique database, many companies keep all the material for discovery in a single repository utilized by all their law firms. This not only helps reduce cost, but it also helps both the client and the law firms know what information needs to be handled in a particular way, for example, what’s being marked as privileged.

Because of privacy laws and security-type issues, we see a growing number of companies wanting to keep their data in the country where their headquarters are located. UBIC, for example, has centers that are located here in the United States, Japan, Korea and Taiwan. This permits clients located in those countries to keep their data in their own country. Many companies based in other countries feel that the U.S. has the worst privacy laws in the world. For instance, national security letters, issued by the FBI, require the employees of companies not to disclose certain information — and individuals who violate an NSL can go to jail.

Editor: Can information located outside the U.S. be subject to e-discovery by a U.S. court?

Bace: Absolutely, it happens all the time. The way of taking and obtaining that information has generally been driven by the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters, which became effective in 1970. It governs how U.S. courts take information from or provide information to a foreign court.  Nationale Industrial Aerospatiale v. U.S. District Court sets forth the following criteria for a comity analysis to determine whether U.S. courts should consider information from or supply information to foreign courts:  the importance of the litigation; the specificity of the request; whether the information was created in the U.S.; whether there are alternative means to obtain it; and whether U.S. interests outweigh foreign ones.  

Editor: Do U.S. courts defer to the privacy rules of foreign countries?

Bace: No. Some countries actually have blocking statutes that are specifically designed to counter the U.S. discovery process.    

Editor: Why is it important for U.S. companies to be aware of privacy and other foreign country constraints on e-discovery?

Bace: So that your overseas lawyers don’t end up in jail, which happened in one case, the Christopher X case. What happened was that litigation was underway in the United States, and the U.S. judge issued a discovery order to produce information from a French subsidiary of a U.S. corporation. Counsel in the United States hired Christopher X as its local counsel in France to implement the U.S. judge’s order. The opposing party invoked the French blocking statutes because Christopher X had not received permission from the privacy commissioner of France as required by the EU’s Data Protection Directive.  Christopher X was thrown in jail, fined €10,000, and threatened with loss of his law license.

You may have problems if you don't know the ground rules governing discovery. For example, I mentioned the NSLs that the FBI can issue. An NSL includes an automatic gag order that forbids you to tell anybody else -- even your own lawyer -- about the NSL. To do so is a felony, and you can be put in jail. In Canada there is a privacy law called PIPEDA. If a bank gets an inquiry about someone else’s bank account, it’s a felony not to inform the subject of the inquiry. Some of the provinces in Canada have even  tougher privacy laws than the national law.

Editor: Why has there been increased litigation involving Asian companies and related e-discovery?

Bace: The center of gravity of business has been migrating from east to west for several centuries now. Once upon a time, the center of business gravity would have been London, and it eventually moved across the Atlantic to New York City. Now, that center of gravity is migrating across the Pacific to the Asia-Pacific region. However, a lot of foreign companies like the U.S. judicial system. They like it for its openness, its fairness, and its vigorous discovery rules.

Editor: Discuss the need for e-discovery providers who have the ability to accurately translate and process emails in Asian languages, and describe how UBIC addresses this need.

Bace: The CJK environment is very complicated. We’ve all seen the different characters. Chinese and Japanese sentences do not have breaks between words. Therefore, it is difficult to automatically identify accurate breaks using standard indexing technology. Another problem is that in Japanese, for example, there are six different character sets that are potentially in use. There is half-size English, full-size English, full-size Kanji, full-size Hiragana, full-size Katakana and half-size Katakana. So you have six different character sets that are all the same letters and words. Then there are form variations in the double-byte character: JIS, shift-JIS, EUC and Unicode. Most people just focus on the Unicode as the double-byte character, so if you take the six different character sets times the shift codes, that’s 24 potential matches for  every single letter and word you are searching for. That’s why key word in context just doesn’t work that well.

Editor: How does predictive coding work in a CJK environment?

Bace:  UBIC uses a predictive coding application that starts learning the relevant CJK character sets. The more you feed into the system, the smarter the system gets at finding a responsive set of documents.  In most English and other Western language environments, Outlook and Microsoft Exchange are the predominant email systems.  In the East, email systems also use a version of Lotus Notes called  Lotus Notes JP.  While they have Outlook, they also use Becky!, EdMAX, Eudora and others. UBIC has the ability to cope with these challenges accurately and at a reasonable price.

Editor: Do lawyers who don’t understand CJK languages need help in using the e-discovery process?

Bace: It’s not just a matter of applying brute force technology; it is also, as you suggest, having advisors who are culturally aware of the nuances of CJK languages. This is only one of the great positives that UBIC brings to the marketplace.

Editor: Why does it make sense for companies to use UBIC as a full-service provider of e-discovery services?

Bace: When the e-discovery market basically took off, which was on the eve of the December 2006 amendments to the Federal Rules of Civil Procedure, the general perception was that people needed the best-of-breed tools across the EDRM. You had some tools that were excellent for finding information, while others culled and processed the information, at which point you would take the refined data and look for a separate review tool.

UBIC has always covered the e-discovery tools market from end to end — all the way from finding the information to producing it to the court.  One of the great trends that’s now taking place in the marketplace is to seek a full-service provider instead of looking for separate best-of-breed solutions and using a different product at each step of the EDRM.  One of the great strengths of UBIC is that it is a full-service provider.

Please email the interviewee at johnbace@hotmail.com with questions about this interview.