David Horrigan
David Horrigan (Photograph by Matthew Rakola)

U.S. law firms conducting e-discovery for Asian corporate clients face many hurdles. In addition to cultural and language barriers, countries in Asia have varying regulations when transferring data outside of their borders.

To help lawyers better navigate this terrain, including the vastly different employee privacy, discovery and attorney-client privilege rules across Asian countries, UBIC Inc. held a seminar at the Yale Club in New York Friday, “Crossing the Pacific: Conducting Legal Business in Japan and the Rest of Asia.” Japan-based UBIC offers Asian-language electronic data discovery software.

The three-hour event was moderated by attorney Ari Kaplan, an industry analyst with Ari Kaplan Advisors. UBIC’s CEO, Masahiro Morimoto, opened the event with a brief discussion of the Asian marketplace. A key theme: In Japan there is nearly zero discovery regulation, he said.

“Law, Technology and Asia: What Lawyers and Their Clients Need to Know” was moderated by David Horrigan, analyst and counsel at 451 Research. The panel discussed how ambiguous China’s data laws can be. For example, China has a state secret law that prohibits the transfer of data out of the country, said Patrick Burke, counsel at Reed Smith. China’s rules regarding privacy are foggy, panelists noted, and there is no definitive rule stating the types of personal information that may be protected.

Other speakers included: Noritaka Kumamoto, an associate at Simpson Thacher Bartlett based in Japan; Tokyo-based Kosuke Kawada of the Sony Corp.’s legal department; and Paul Starrett, chief global risk officer at UBIC North America.

Before the days of electronic data discovery, some countries would not let boxes of paper leave their borders, said UBIC’s Starrett. The documents would have to be electronically scanned inside the country, which could be problematic in terms of mismatching file types, among other tech issues, he said.

But even today, discovery inconsistencies are prevalent throughout Asia. Among the points made by the panelists and reinforced in the accompanying PowerPoint:

• Only limited discovery (no pre-trial discovery) is permitted in South Korea.
• Although Japan does not regulate the transfer of data across its borders, the process could violate its “Protection of Personal Information” rule—as employee consent is required for data to be transferred to third parties.
• Attorney-client privilege also varies from country to country. For example, Singapore was founded on English common law and recognizes attorney-client privilege, unlike China where attorney-client privilege does not hold up against a government inquiry or in court.

Attorneys must understand the guidelines for each country and get local counsel involved, said Reed Smith’s Burke, an adjunct professor who teaches EDD and information governance at the Benjamin N. Cardozo School of Law. Whether attorneys should attempt to bring documents into the U.S. should be based on the risk tolerance of their client, Burke said, noting that some documents are sent regardless of privacy rules due to a lack of enforcement.

The event also included a panel on global information governance, moderated by Jason Baron, counsel at Drinker Biddle & Reath, and featuring New York-based Sandra Rampersaud, practice area attorney, litigation, at Cravath, Swaine & Moore, and Denise Backhouse, a shareholder and e-discovery counsel at Littler Mendelson, based in New York. The theme of that panel complemented the other speakers, suggesting that there should be an international standard for how data is moved, and clearer guidleines about what data should be retained and what should be destroyed.

Mark Gerlach is a staff reporter for Law Technology News.