X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
In general, cross-border issues tend to act as a multiplier to the complexity of a litigation project. As a result, the importance and primacy of end-to-end project management in multinational litigation cannot be overstated. The very earliest planning has a cascade effect on the scope and cost of every facet of the project going forward. Well-thought-out decisions can bring a daunting project into the realm of manageability, while poor initial choices can haunt a project for its duration in extended timelines and ballooning costs. One of the most challenging cross-border issues is determining what local laws, regulations and (don’t discount this) company policies are applicable, particularly if it’s a non-U.S.-based company, and then what impact they have on the data-collection, processing and review plan. Companies often need the opinion of in-house counsel, outside counsel and occasionally third-party outside counsel (not otherwise involved in the matter) with expertise in the local laws/regulations. They then need to integrate modifications to what would otherwise be their standard plan in a way that maintains the integrity and intent of the plan, including maintaining a consistent standard of care. This requires both technical and legal input. Take, for example, the first issues in a project related to collecting the data. One of the first things to do is help the client fight the instinct to begin collecting and centralizing data. Though this is normally a solid strategy for managing a large review, in the case of international matters it can often expose more data to potential discovery. For instance, data in Country A (outside the United States) may be subject to that nation’s laws on nondisclosure of private information, but if that same data were collected and centralized into a review-system physically in the United States, it may all immediately become discoverable. Such inadvertent expansion of the data pool can radically increase costs and timelines. Privacy laws, particularly in the European Union, must be taken into consideration, and an appropriate collection, filtering and export strategy determined, prior to performing any data collection. The legal issues must be addressed first, and, as part of that, the collection scope should be determined. In certain cases, data cannot be legally exported, or must be filtered first. Often, centralizing data post-collection is a good cost-management strategy, but companies may be prevented from doing so due to the local laws, relegating the companies to performing work in the field that would otherwise be more efficiently performed “at the factory”-in this case, the factory being, for example, the electronic data-discovery processor. In addition, depending on the methods and discipline used in a multisite collection, such multinational projects can lead to questions of data integrity. For any discovery forensic initiative, the technical and legal teams should understand the anticipated issues (is the matter likely to revolve around forensics issues?) and develop a data-collection approach to meet the profile. Forensic soundness is more or less important depending on the scenario. What is extremely important is that the decisions be well-documented, and the collection methods and tools decided upon as a result be employed consistently for defensibility. If company information technology (IT) resources are going to be employed, it is imperative to issue strict instructions for the IT professionals to follow, require the documentation of all steps taken and consider supervision. Limiting scope of collection One very important step is to make an up-front attempt to limit the scope of collection in a defensible manner, and test that with opposing counsel prior to collection. This may take some time, so preservation becomes important immediately, in order to safely buy the time to carry out that effort. When involved in multinational matters, one might consider preparing a comprehensive survey to catalog all information sources and repositories potentially involved, as well as to document recommended data-handling procedures for each data type and location. One might consider retaining a vendor to assist in this effort. This typically involves on-site personnel interviews as well as site surveys of the facilities in question. Putting together a complete information map of the project will reveal what data should be collected and centralized and what data should be reviewed in situ in order to minimize exposure and accommodate local restrictions. Depending on such planning, the investment in placing a remote processing-and-review hub in one or more non-U.S. locations can pay for itself many times over in reduced data that must be generally reviewed as a case progresses. The issues around translation are often the first that people want to discuss when a multinational project arises, but these are actually much less important in comparison to the broader issues of collection and data management. Translation can be a tricky topic. First, very few review platforms are truly multilanguage-capable. When one digs into claims of language capabilities, one sees significant limitations-such as the inability to treat the corpus as one document universe and the inability to combine taxonomies or related structures. One also has to consider that translation cannot be fully relied upon, and therefore attorneys may need to agree on a strategy with opposing counsel before undertaking such as effort. There are any number of strategies that can be employed to help use conventional review tools to manage litigation projects. The basic truisms of translation are:
LITIGATION MANAGEMENT

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at customercare@alm.com

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.