E-Discovery in the Asia Pacific Region and the Importance of

Information Governance
Judge David Harvey
District Court
Auckland, New Zealand
Abstract
This paper commences with a consideration of discovery processes in the
Asia-Pacific region, developing common themes and trends from ediscovery rules in New Zealand, Australia, Singapore and Hong Kong. It is
argued that, for reasons that will become clear later in the paper that an
understanding of e-discovery procedure is necessary for organisations
doing business in a number of jurisdictions or in considering choice of law
and forum requirements in commercial contracts. In addition, domestic
rules may have an impact upon Information Governance strategies that
may be adopted by business organisations.
I then move on to consider issues surrounding multi-jurisdictional
Information Governance and discovery issues, considering the US case of
In the Matter of Microsoft Email1 and the approaches in civil jurisdictions
focussing upon discovery where there is actual or putative control, the
utilisation of various discovery options in cross-jurisdictional applications
as well as obstructions to discovery arising from data localisation policies
and laws in domestic jurisdictions, observing that, although the
opportunities for business globalisation in the Digital Paradigm are
considerable, care must be taken in establishing Information Governance
policies and assessing some of the underlying litigation risk issues,
concluding that, even although we may be doing business in a world
without borders, place still matters.
Finally I briefly advance the proposition that proper Information
Governance in the Digital Paradigm is critical for the success of business.
In an age of Big Data proper Information Governance can fulfil a number
of corporate objectives, including the successful compliance with
discovery observations in the event of litigation. I suggest that in fact the
e-discovery process is an element of a proper and complete Information
Governance process.
Introduction
Discovery obligations vary between civil and common law systems.
Although discovery operates in civil jurisdictions, it is based upon a
1 In the Matter of a Warrant to Search a Certain E-mail Account Controlled
and Maintained by Microsoft District Court SDNY M9-150/13-MJ-2814 29
August 2014 Judge Preska
http://www.scribd.com/doc/238413669/Microsoft-Warrant-Ruling (last
accessed 26 March 2015)
1

different set of premises from those that have developed in common law
systems.
Discovery in common law systems has, over the years, posed
considerable problems. Rather than an issue based focus applying to the
particular case in hand, often a wider, more extensive and very expensive
enquiry has been required, primarily as a result of what may be termed
Peruvian Guano2 discovery theory. In the pre-digital age often the difficulty
lay in firstly locating documents sought in discovery and secondly in
reviewing what was found. Often searches would involve going through
corporate archives located in warehouse and through documents filed,
frequently haphazardly, in large archive boxes. The Digital Paradigm
provides a digital parallel but rather than warehouses and archive boxes,
the location of discoverable material may extend over a variety of servers,
devices and locations involving a vastly greater number of information
sources than were created in the pre-digital age. With the exponential
increase in information sources, haphazard storage and archiving
processes, increases in the costs of discovery have made a Peruvian
Guano approach in the Digital Paradigm complex, time consuming and in
terms of cost often disproportionate to the issues and the amount in
dispute in litigation.
The development of e-discovery principles and policies, largely emanating
from the think tank of the Sedona Conference3, has resulted in a seachange in discovery practices in common law jurisdictions exemplified in
the United States by changes to the Federal Rules of Procedure and in
England and Commonwealth jurisdictions by the promulgation of Practice
Notes, Directions and in one case a complete overhaul of the discovery
process.
The first part of this paper examines e-discovery processes in the Asia
Pacific (APAC) region, considering developments in Australia, Singapore,
Hong Kong and New Zealand from a thematic perspective. The second
part of the paper briefly considers some of the issues that arise in multijurisdictional information governance and discovery. Although digital
storage systems may facilitate information recovery, domestic privacy,
data protection and other regulatory structures may impede the
information flow. Finally I briefly advance the proposition that proper
Information Governance in the Digital Paradigm is critical for the success
of business. In an age of Big Data proper Information Governance can fulfil
a number of corporate objectives, including the successful compliance
with discovery observations in the event of litigation. I suggest that in fact
the e-discovery process is an element of a proper and complete
Information Governance process.
2 Compagnie Financiere du Pacifique v. Peruvian Guano Company (1882)
11 QBD 55
3 https://thesedonaconference.org/ (last accessed 27 March 2015)
2

Part 1 - E-Discovery in the APAC Region

Introductory
The major common law jurisdictions in the Asia Pacific region Australia,
New Zealand Hong Kong and Singapore have all adopted special rules to
address the e-discovery phenomenon.
Australia, Hong Kong and
Singapore have addressed the issue within existing rule structures by the
provision of special protocols or Practice Directions dealing specifically
with e-discovery and which run parallel with what may be termed
conventional discovery rules. New Zealand followed a different course
and changed its rules, replacing earlier discovery provisions in the High
Court Rules with a new set of rules that not only changed the scope of
discovery moving it away from Peruvian Guano type discovery to an
issue relevance system but also provided for a universal approach to
discovery be it conventional or e-discovery.
The various protocols, Practice Directions and rules in the APAC region are
largely similar but contain certain variations In this discussion I identify a
number of common themes and will consider the approaches of the
various jurisdictions within the context of those themes.
The Themes
Engagement Threshold
A characteristic of the protocol or Practice Direction approaches to ediscovery is the provision of an engagement threshold. In Australia the
Federal Court Practice Note requiring a plan for the utilisation of electronic
documents at a hearing and e-discovery in general will be engaged where
some 200 or more documents relevant to the proceeding have been
created or stored in electronic format and where the use of technology
and document management will facilitate the quick, inexpensive and
efficient resolution of the matter.
In Singapore and in Hong Kong an engagement threshold based upon the
sum in dispute is one of the criteria that has to be taken into account. In
Singapore the dispute must involve a claim or a counterclaim of more
than $SGD1 million. In Hong Kong the claim or counterclaim must exceed
$HKD 8 million.
Singapore and Hong Kong, like Australia, have a document threshold as
well.
In Singapore the Practice Direction will be engaged where
discoverable documents exceed 2,000 pages.
In Hong Kong the
document threshold is one where the case requires the parties to search
for at least 10,000 documents.
In Singapore a further criterion is that discoverable documents are
predominantly in electronic format.

Both Hong Kong and Singapore provide a power vested in the Court to
order that the Practice Direction may be applicable. In Hong Kong the
parties may also opt-in to the Practice Direction should they so desire.
The Singapore Practice Direction first came into effect in 2009 and at that
stage engagement occurred where the parties opted in. In 2012 the
Practice Direction was reviewed and the opt-in provision was dropped in
favour of a criteria based approach.
The Hong Kong Practice Direction came into effect in 2014 and is due for
review in 2015. Some concerns have been expressed about an absence of
judicial proactivity or enthusiasm for the 2014 Practice Direction.
In New Zealand the Rules engage automatically as a result of the
universal approach to discovery.
Court and Judicial Management
This leads me to the second theme common throughout the rules and that
is a shift away from a parties driven approach to discovery - where
conduct of discovery in the litigation is in the hands of the parties who
seek the direction of the Court in cases of dispute - to a Court
management and judicial control approach to discovery. All of the APAC ediscovery rules provide for a case management conference at which time
the parties must have their discovery and document management
proposals in place. In this regard the parties must satisfy the Judge that
proper consideration of discovery issues has been undertaken and that
progress has been made in considering the nature of material to be
discovered, the processes by which this may be undertaken and some of
the technological solutions that may be available. Where technology is to
be used it is the expectation of the Court that there will be some
agreement as to search methods and search terms.
In this respect the case management conference is a critical milestone in
the e-discovery process. The management role of the Court and Judge are
emphasised and the case management conference provides an
opportunity for supervision by the court of the discovery process.
This is quite a different role for the Court when compared with what may
be termed conventional discovery but it is of interest that in the protocol
or Practice Direction jurisdictions of Australia, Hong Kong and Singapore
conventional discovery processes sit alongside specific provisions for ediscovery. This means that different standards and management
approaches apply to different types of discovery. This is not the case in
New Zealand where no distinction is made between conventional
discovery or e-discovery in terms of the supervisory role undertaken by
the Court in that all cases e-discovery or not go to a case management
conference and the Judge must be satisfied that proper arrangements
have been undertaken to effect discovery albeit by conventional means or
by the utilisation of electronic systems.
4

Consult, Confer, Cooperate

By the time the milestone of the case management conference has been
reached the parties will necessarily have had to consult and confer.
Consult and confer requirements are common to all of the APAC ediscovery regimes. This requirement emphasises the shift away from
confrontation, adversarialism and the cards close to the chest approach
to litigation that was a feature of the pre-digital age and recognises that
there must be cooperation to ensure proper compliance with the rules and
a cost effective approach. The theme of cooperation, effected by consult
and confer requirements, is necessary to achieve a further theme
common in all of the APAC e-discovery rules which is that of ensuring that
the scope of discovery is reasonable and proportional. This is a shorthand
way of stating that the costs of discovery do not spiral out of control and
that the scope of discovery is reasonable having regard to factors such as
the sums in dispute the documents to be discovered the issues to be
determined and proportional in that the scope of e-discovery and flowing
from that the costs thereof should not be disproportionate to those
matters in dispute.
Reasonableness and Proportionality Approaches
In the Singapore rules the matters to which regard must be had in
determining proportionality and economy include:
a) The number of documents involved;
b) The nature of the case and the complexity of the issues;
c) The value of the claim and the financial position of each party;
d) The ease and expense of retrieval of any particular electronically
stored document or class of electronically store documents
including:
i. The accessibility, location and likelihood of locating
any relevant documents;
ii. The costs of recovering and giving discovery and
inspection including the supply of copies of any
relevant documents;
iii. The likelihood that any relevant documents will be
materially altered in the course of recovery, or the
giving of discovery or inspection; and
e) The availability of electronically stored documents or class of
electronically stored documents sought from other sources; and
f) The relevance and materiality of any particular electronically
stored document or class of electronically stored documents
which are likely to be located to the issues in dispute.
Under the Hong Kong rules reasonableness and proportionality will depend
upon:
a) The number and significance of electronic documents;
b) The nature and complexity of the proceeding;
c) The ease and expense of document retrieval.

The Checklist Approach

Cooperation and consultation require a continued awareness of ensuring a
reasonableness and proportionality. To this end all of the rules contain a
reference to a checklist or guideline document contained in an appendix
to the rules. A consideration of the various rule structures in all of the
APAC jurisdictions suggests that the rules themselves are broad brush
statements of principle. The detail in ensuring compliance with the rules
and taking into account the matters that have to be considered in deep
detail are contained in the various checklists. In Australia the related
materials with the Practice Note include:
a) A pre-discovery conference checklist;
b) A default document management protocol;
c) An advanced document management protocol;
d) A pre-trial checklist.
The Australian rules not only address e-discovery issues but also
document management and presentation at a Court hearing. Thus it is for
this reason that the document management protocols are included among
the checklists and associated guidance documents. In New Zealand a
separate document management protocol dealing with document
presentation at Court was recently introduced.
The Singapore Practice Direction contains a checklist of issues for what is
described as good faith collaboration between the parties the
Singaporean expression for cooperative confer and consult obligations
upon counsel. In addition, an agreed electronic discovery plan is provided
containing details of search terms, the scope and format of a list of
documents, review for privileged material and the method of inspection.
The Hong Kong rules provide for an Electronic Document Discovery
Questionnaire or EDDQ which is based upon the English e-discovery
questionnaire. In addition there is a sample protocol for discovery of
electronic documents. In New Zealand the rules provide for a checklist of
matters that counsel must take into account in approaching electronic or
indeed any discovery.
One of the advantages of the questionnaire or checklist approach is that
such documents can also provide an agenda for the Judge at case
management conference. Such an approach means that counsel who
have been lax in their consult and confer obligations or in their
consideration of e-discovery approaches will face a careful and critical
judicial examination at the case management conference.
Early Case Assessment
A further theme within the various APAC e-discovery rule systems is that
of the necessity for early case assessment and the identification of data
sources. In Hong Kong the parties must serve a draft of an electronic
document questionnaire with their initial pleadings. Thus the Court
expects parties to consider discovery issues as soon as litigation is
contemplated. The Early Case Assessment requirement is not so clearly
6

spelled out in the Singapore Practice Direction although it my view,

because e-discovery must be seen as a process and that theme is
common to all of the APAC rule systems it would be foolhardy for counsel
to delay discovery assessments. Under the New Zealand rules it is
necessary to provide copies of essential documents when the statement
of claim is filed thus emphasising the need for counsel to give early
consideration to discovery obligations.
Early case assessment has always been a critical part of the e-discovery
process and it is of interest that the most recent Electronic Discovery
Reference Model (EDRM) emphasises the importance of information
governance as a first stage in the e-discovery process and preceding
identification in early case assessment.

Utilisation of Technology
The various rule systems in the APAC region necessarily contemplate the
utilisation of technology starting with basic keyword searching all the way
through to technology assisted review (TAR). Some of these terms are
defined in the Hong Kong and New Zealand rules with some specificity.
The Hong Kong and Singapore rules seem to suggest that preliminary
evaluation and development of data sets is done by key word searching
and emphasis is placed upon the elimination of document duplication.
The New Zealand rules go into some detail in the glossary of technological
terms if only to ensure that the parties are clear about what the various
technological solutions may achieve.
The level of technological sophistication must of course depend upon
issues such as reasonableness and proportionality. Expensive and time
consuming solutions are not necessarily going to be practical in the case
of the small claim. The Singapore rules appear to be technology neutral in
that there is reference only to the development of search terms together
7

with the prevention of duplication and limiting recovery of documents.

The Hong Kong rules go into a little more detail but suggesting tools to be
used to achieve particular objectives such as the categorisation of
documents date ranges and the like. The Hong Kong rules also suggest
processes for agreeing upon key words for searches, concept searches
and data sampling together with provision for the identification of
privileged or non discoverable documents and associated redaction
techniques.
Both the Singapore and Hong Kong rules suggest a staged discovery
process in terms of the utilisation of technologies. Initial discovery or
general discovery may take the parties to a certain point and a further
stage of discovery may be necessary to advance the matter.
An
advantage of a staged discovery approach is that the parties can
continually keep an eye upon issues of reasonableness and proportionality
and of course cost. In New Zealand there is provision for a tailored
discovery approach that may be made by agreement with the assistance
of a Judge. A tailored discovery order may limit or restrict discovery or
alternatively, if justification can be advanced, broaden the scope of
discovery even so far as a Peruvian Guano type of discovery. Such an
approach would rarely be granted in my view and would have to be
demonstrably necessary.
The Use of Technical Expertise
The Hong Kong rules make provision for technical expertise to be obtained
to address the following matters prior to the first case management
conference.
a) The categories of ESI that are within the control of the parties or
contained in their computer systems and devices;
b) The scope of a reasonable search of ESI;
c) The deployment of techniques to reduce the burden and costs of
discovery of ESI, such as key word or automatic searching, the
elimination of duplicated documents and the identification in
dealing with privilege material;
d) The preservation of ESI;
e) The formats in which lists of documents in ESI are to be
produced; and
f) The digitisation of paper documents.
The obtaining and provision of technical expertise is implicit within all of
the rules for it is recognised that evaluations of reasonableness and
proportionality can only be undertaken after a full consideration of the
effectiveness of technological solutions. Thus it may on occasion be
necessary for a technical expert to attend at a case management
conference to provide expert opinion or assistance to the parties and to
the Court in addressing a possible solution.
Technological Competence Counsel and the Judiciary

However there must be some level of technological literacy on the part of

lawyers. It seems to me essential that lawyers engaged in large
commercial disputes that fall within the scope of the practice directions,
protocols or rules have a good degree of technological literacy. This
includes, in my view, an understanding of the nature of ESI, together with
a reasonable knowledge of the way in which the various types of available
data analytics may be employed and operate. It may be that developing
the necessary search parameters for a predictive coding operation will
require a technical expert but the lawyer should have sufficient knowledge
and technological competence to be aware of the advantages and
limitations of the particular software so that a meaningful consultation can
take place with a technical expert and with ones opposite numbers.
Similarly there must be a level of technical competence on the part of the
judiciary presiding over e-discovery case management conferences. If
there is to be a proper evaluation of cost, reasonableness and
proportionality in e-discovery there must be some working knowledge on
the part of decision makers of the way in which the technology works and
the advantages and disadvantages of a particular solution. It may well be
argued that technical competence is beyond what is required for expertise
as a Judge and skills in legal analysis are all that is required. That may
well have been the case before the Digital Revolution. In my view it is not
an answer to say that a Judge may be informed by expert evidence about
a solution for a particular case. If that is to be the approach one might as
well hand over the determination of an issue about the utilisation of a
particular technology and whether or not it is reasonable and proportional
to an expert and remove the Judge from the process altogether. This
would be an unsatisfactory outcome in my view.
In the United States there is an increasing focus upon an understanding of
technological matters as part and parcel of counsels competence. The
ABA model rule 1.1 on competence with comment 8 reads:
To maintain the requisite knowledge and skill, a lawyer
should keep abreast of changes in the law and its practice,
including the benefits and risks associated with relevant
technology, engage and continuing study and education and
comply with all continuing legal education requirements to
which the lawyer is subject.
This must extend to a litigators duty to understand e-discovery concepts.
A lack of competence in e-discovery issues could result in certain
circumstances in ethical violations of a lawyers duty of confidentiality, of
candour and of the ethical duty not to suppress evidence. The lawyer
must know that technologies exist and what impact they can have on
cases so that decisions can be made about whether or not to implement
them. Whether the lawyer is the one using the technology or simply
making the decision to have that technology used in the firm, the first
step is understanding the type of technology available and its use and
impact.
9

A deep level of understanding is not necessary for the Judge but there
must be, at least, technological awareness on the part of the decision
maker who may be assisted in the fine detail by an expert or by way of
technical assistance.
Part 2 - Multi-Jurisdictional Information Governance Issues
Managing Data Across Borders
Introductory
Jurisdictional issues come to the forefront in cross-border litigation and
especially in the field of e-discovery. The classic conflict of laws questions
which court, which law apply with added force when discoverable
material may be located across borders. Whilst a simple answer may lie in
the concepts of documents in possession or control either presently or in
the past, there are associated problems with national data movement
policies. In this regard, the focus is not on excluding access to data
coming in from outside the jurisdiction, but rather upon keeping data in.
Privacy issues provide an example. Social media discovery may not be a
problem in a domestic jurisdiction like the United States, but given the
wide range of privacy, data protection and data transfer rules and the
growth of social media throughout many jurisdictions, there may be
difficulties locating evidence as well as producing it. One issue that may
need to be considered is whether social media information or postings are
truly private and user agreements with social media providers may make
it clear that a privacy setting does not necessarily protect information
being shared or used in litigation. LinkedIn notes in its user agreement, [I]f
you have an idea or information that you would like to keep confidential...do
not post it to any LinkedIn Group, into your Network Updates, or elsewhere on
LinkedIn. User agreements on Facebook, MySpace, Reddit and Twitter
contain similar statements giving employees the right to use information
posted on the social network.
This is at odds with how many foreign countries typically view personally
identifiable information. In one case, Austrian citizen Max Schrems filed a
class action lawsuit against Facebook for collecting his information, saying
the company violated EU privacy statutes. The class currently has 25,000
members, and the first hearing in the matter is set for April 2015.
For posts that are made in traditional messaging boards that are
open to the publicTwitter definitely fits into that, and to a large
extent so does LinkedInthose are going to be a tougher call,
perhaps even in a foreign country, For content sent via private
messaging features, even the U.S. might recognize some sort of

10

inherent privacy associated with that, and there certainly would be

with Europe.4
Once again the issue of Information Governance comes to the fore. Issues
related to social media discovery off-shore can be avoided if there is a
solid social media policy within the organisation. This could include
documents that employees sign and acknowledge, knowing exactly when
and where theyre allowed to use social media in connection with work, as
well as litigation readiness tactics and the selection of e-discovery
technologies.
However, in the event of litigation the difference between social media
content and other user generated material in an organisation is
highlighted social media content is not necessarily owned by the
company or organisation. Email, Sharepoint data, instant messaging, even
if located in the Cloud are owned by the organisation. But it does not own
content on Facebook. Even when the company posts the content, it
belongs to Facebook. If the content provider is situated in the forum
jurisdiction the issue can usually be resolved with the issue of a subpoena
or a third party discover order. In the case of cross border discovery
probably the safest way to achieve full compliance is on-site discovery in
accordance with the foreign law.
In some cases it may be possible to obtain permission to remove
information in certain jurisdictions. Germany has the Works Council,
France has CNIL (Commission nationale de linformatique et des liberts),
and Australian states have a patchwork of privacy statutes similar to the
U.S. This does not necessarily mean that the information is easily
obtainable and the time delays can be considerable.
Cross-Jurisdictional Discovery
In a recent article Anupam Chander and Uyen Le made the following
observation:
Efforts to keep data within national borders have gained traction in
the wake of
revelations of widespread electronic spying by United States
intelligence agencies.
Governments across the world, indignant at the recent disclosures,
have cited
foreign surveillance as an argument to prevent data from leaving
their borders,
allegedly into foreign hands. Putting data in other nations
jeopardizes the security
4 Philip Favro in Zach Warren Social Stumbling Blocks Inside Counsel 25
February 2015 http://www.insidecounsel.com/2015/02/25/social-stumblingblocks (last accessed 26 February 2015)
11

and privacy of such information, the argument goes. We define

data localization
measures as those that specifically encumber the transfer of data
across national
borders. These measures take a wide variety of formsfrom rules
preventing
information from being sent outside the country, to rules requiring
prior consent of
the data subject before information is transmitted across national
borders, to rules
requiring copies of information to be stored domestically, to even a
tax on the
export of data.5
Chander and Le examine
data localization measures in sixteen statesAustralia, Brazil,
Canada, China, France, Germany, India, Indonesia, Kazakhstan,
Malaysia, Russia, South Korea, Sweden, Taiwan, Thailand, and
Vietnamas well as the European Union. The problem of data
localization is even more pervasive than the jurisdictions we identify.
Furthermore, the measures achieve data localization in a wide
variety of ways. While some of the measures explicitly force data to
be located on home country servers, often the localizing effect is
less visible and more indirect. Kazakhstans directive, for example,
is explicit, requiring new companies using the .kz top level domain
to operate from physical servers located within the country.
Malaysia, on the other hand, requires consent for international
transfer of data, which can prove a significant hurdle. Taiwan
permits authorities to restrict transfers if they concern major
national interests. Other regulations focus on selected sectors.
Australia prevents health records from being transferred outside the
country if they are personally identifiable.6
It can be seen that there are a range of factors that impact upon data
localisation. Chander and Le focus upon aspects of privacy, enhanced
surveillance opportunities and the possible threat to the free flow of
information in all its forms across the Internet. Another factor that may be
taken into account is that of economic development. Many governments
believe that by forcing companies to localize data within national borders
they will increase investment at home. Thus, data localization measures,
whether explicitly or not, are often motivated by desires to promote local
economic development. In fact, however, data localization raises costs for
local businesses, reduces access to global services for consumers,
5

Anupam Chander & Uyen P. Le Breaking the Web : Data Localisation vs The Global Internet
(April 2014). Emory Law Journal, Forthcoming; UC Davis Legal Studies Research Paper No. 378.
Available at SSRN: http://ssrn.com/abstract=2407858 or http://dx.doi.org/10.2139/ssrn.2407858

6 Ibid.
12

hampers local startups, and interferes with the use of the latest
technological advances.
Data localisation rules must be considered by businesses setting up
branches or moving operations offshore. Depending upon the strength of
the rules and the particular requirements there may well be interference
with discovery obligations or early document isolation if litigation is
contemplated along with wider corporate Information Governance issues.
These local problems may fall into the category of soft obstacles to
cross border discovery and what have been described as cultural
differences regarding the protection of personal data present the biggest
soft obstacle when it comes to cros-border litigation.7 Certainly EU data
protection rules are stronger than, say, in the United States and the scope
of discovery allowed under US discovery Rules, even allowing for a
reasonable and proportionate approach in the case of e-discovery is still
very broad. Civil law countries generally require specific and particularised
discovery requests and France, in addition, requires that such discovery
be admissible. Limited assistance may be obtained from the Hague
Evidence Convention8 although to invoke the procedure provided to obtain
evidence located in foreign countries for local litigation requires accession
to the Treaty in the first place9, and a willingness to abide by the time
consuming and cumbersome procedures .The Hague Evidence Convention
also runs up against difficulties if there are specific blocking statutes and
local data privacy laws.
Multi-Jurisdictional Control An APAC Perspective
Hong Kong and Singapore are the only two common law jurisdictions
within the immediate Asian region and the only two were typical common
law e-discovery requirements. E-discovery in civil law jurisdictions is
traditionally more limited than in common law jurisdictions and there are a
number of civil law jurisdictions within Asia the growth of the global
economy and the rise in offshore litigation has an impact upon companies
operating in the Asian Pacific region particular in Japan and China
although those countries themselves lack a domestic discovery process as
civil law jurisdictions.
7 Charles Roberts & Christopher Gallagher Cross-Border Discovery: An
Introduction to Cultural and Legal Obstacles
https://www.discovereq.com/ediscovery-resources/white-papers/obstaclescross-border-discovery/ (last accessed 1 May 2015)
8 Convention on the Taking of Evidence Abroad in Civil or Commercial
Matters
9 There are 58 Contracting States to the Convention. New Zealand is not
one of them. Australia and Singapore are. The Convention is in force
between Hong Kong and a number of other ratifying states
(http://www.hcch.net/upload/hongkong20.pdf)
13

Despite this, the majority of international transactions between Japan and

other Asian countries are documented in English and have a neutral
governing law of either England and Wales or New York. Thus, these
choice of law solutions drive litigation to these American or English
common law jurisdictions. In considering discovery obligations it is
necessary to consider compliance with the privacy and other information
or data regulatory rules applicable where the information is located. In
the case of Securities & Futures Commission v Ernst & Young10 a regulator
issued statutory notices in Hong Kong requesting production of financial
information created or held by an agent or affiliate in mainland China.
The difficulty was that disclosure of those documents may have been
prohibited under State Secrets Law, Archives Law or under more specific
laws promulgated in the Peoples Republic of China. Thus, unless it could
bring itself within a relevant exclusion to production under a statutory
notice, a party disclosing information in compliance with such a notice
could find itself in breach of mainland Chinese law and subject to potential
sanction.
Possession, Custody and Control
An essential aspect of discovery is the requirement to discover documents
or information in the possession custody or control of a particular party.
This concept underpins decisions relating to location based discovery
obligations. In Lonrho Limited v Shell Petroleum11 the Court held that:
In the context of the phrase possession, custody or power,
the expression power must, in my view, mean a presently
enforceable legal right to obtain from whoever actually holds
the document inspection of it without the need to contain the
consent of anyone else.
Thus emails and an online email account have been held to be within a
persons power to obtain.12 The test for production of documents is based
on the concept of control rather than location.13
The approach from England suggests a contextual analysis should be used
to determine whether there is a practical ability to obtain documents.
What must be considered is that the degree of control that the party liable
to disclose has over the entity with the actual possession of the
documents. This contextual approach can be traced back to the Lonrho
10 23 May 2014, HCMP 1818/2012
11 [1982] AC 173; [1981] 3 WLR 33
12 Dirak Asia Pte Ltd v Chew Hua Kok [2013] SGHCR 1.
13 Marc Rich & Co, v United States 707 F2D 663, 667 Second Cir (1983).
This case was in the context of a subpoena requiring the recipient to
produce information in its possession, custody or control regardless of the
location of that information
14

case and in more recent cases such as R v Tecnion Investments Ltd 14and
North Shore Ventures Ltd v Anstead Holdings Inc 15 the Lonrho approach
was developed further by requiring the Court to consider the facts of each
case to determine whether the party was under an obligation to disclose
and had that practical ability by virtue of its relationship with the party in
possession of the documents. Even although an online email account may
be hosted offshore, a litigant could be expected to give discovery of such
emails and by virtue of the terms and conditions entered into by the
litigant when he or she signed up for the webmail services there may be a
legal right to obtain an access to copies of the emails within his or her
power.
The problem with cross border discovery, as already been suggested in
the context of the Peoples Republic of China, is that the export of
discoverable documents from a foreign jurisdiction may be contrary to the
domestic laws of that jurisdiction. Blocking statutes or data localisation
measures usually in the nature of privacy or data legislation in Europe,
state secrecy laws in China and banking secrecy laws in Switzerland as
examples pose problems. The difficulty is that applying lex fori the local
Court may have the jurisdiction to make an order even although
compliance therewith may expose the parties subject to them to the risk
of prosecution under a foreign law but that provides no defence to their
making. 16 Essentially the matter would resolve as to a discretion vested
in the Court as to whether or not it made such an order.
In Servier it was held that a request between Courts under the EU
Evidence Regulation is mandatory only if the domestic Court wishes to
obtain evidence in another members state in the nature can in practice
only be obtained with the insistent of that member states judicial or other
public authority.
In addition guiding principles from the Sedona Conference International
Principles of Discovery and Disclosure of Data Protection could well be
cited to overcome foreign objections on the basis that the data that is
sought is limited in scope to that which is relevant and necessary to
support a parties claim or defence thus to minimise conflict of law issues
and the impact upon the data subject.
The issue of cross-border discovery recently arose in the matter of a
warrant to search a certain email account controlled and maintained by
Microsoft17. The warrant in that case rather than being issued as a result
of civil proceedings was issued under the Stored Communications Act
which authorised search and seizure of information associated with this
14 (1985) BCLC 434
15 [2012] EWCA CIV 11
16 Secretary of State for Health v Servier Laboratories Ltd [2013] EWCA
CIV 12334
15

specific web based email account. The operator of the email service
moved to quash the search warrant to the extent that it directed the
operator to produce content stored on a server not located in the United
States but in Ireland. It was held that the warrant did not violate the
presumption against the extra-territorial application of the law of the
United States. The warrant had been obtained by law enforcement upon
application to a neutral Magistrate who issued an order only upon a
showing of probable cause. It was executed by being served upon the
provider who was in possession of the information and did not involve
Government agents entering the premises.
The provider was located in the United States and, importantly, had
control over the information. The Court held that the test for production
of documents pursuant to a subpoena was based upon the concept of
control rather than the location of documents. Thus the test for the
production of documents is control and not location and that is consistent
with the view that, in the context of digital information, a search occurs
when information from or about the data is exposed to possible human
observation, such as when it appears on a screen rather than when it is
copied by the hard drive or processed by a computer.18
Consideration was given to Mutual Assistance Treaties and it was observed
by the Court that the process remains slow and laborious as it requires the
cooperation of two governments and one of those governments may not
prioritise the case as highly as the other. Furthermore nations that enter
into Mutual Legal Assistance Treaty arrangements retain the discretion to
decline a request for assistance and Mutual Assistance, of course, is not
available where no treaty is in place.
Some Practical Steps
Cross-jurisdictional e-discovery can be challenging, not only in the sense
of specific laws governing data flows, privacy and the like but in terms of
language and cultural differences. To obtain the co-operation of
custodians may be difficult.
A first step should be to retain local counsel who will be familiar with local
laws dealing with data, its access, how it can be shared and under what
circumstances. Local counsel will understand cultural norms and how one
should approach custodians to obtain maximum co-operation and
17 In the Matter of a Warrant to Search a Certain E-mail Account
Controlled and Maintained by Microsoft District Court SDNY M9-150/13-MJ2814 29 August 2014 Judge Preska
http://www.scribd.com/doc/238413669/Microsoft-Warrant-Ruling (last
accessed 26 March 2015)
18 See Orrin Kerr Searches & Seizures in the Digital World (2005) 119
Harvard LR 531
16

compliance. In the same way that Early Case Assessment is vital, as soon
as it is realised that there may be cross-border custodians, local counsel
should be retained early so that they will be aware of what is required and
the chances of misunderstanding will be reduced.
Secondly, it is essential that local counsel and custodians are crystal clear
about what data is needed, why it is required and how it will be used.
Once there is transparency and understanding there is greater opportunity
for co-operation. In the same way that there are consult and confer
requirements between opposing counsel with a view to obtaining a cooperative solution, close consultation with local counsel is essential.
Arrogance, threats or perceived half-truths or untruths will derail the
discovery process and it is to be remembered that local counsel are not
answerable in instructing counsels domestic court.
Thirdly, the nature of the enquiry should be a focussed one. Lawyers will
frequently gather more data than they need or is relevant, often for fear of
missing something important by gathering too little. This approach is often
incompatible in jurisdictions that have strict data privacy laws. Thus, in
keeping with the requirement for transparency, it is better to be specific
about what is required rather than overreach.
Finally there may be misperceptions by off-shore custodians about the
way in which the legal system of the requesting party may operate. These
cultural misperceptions may arise from movies, TV or even propaganda.
To overcome any cultural misperceptions it is helpful for overseas
custodians and lawyers to understand how the process really works and
how it benefits both sides in litigation. Time spent in such background
discussions can smooth the path of any misunderstanding that may arise.
The common theme from the above discussion is one of ensuring that
there is a trust relationship between the seeking lawyers and the offshore
custodians and their representatives. Building trust across national,
cultural and language boundaries is difficult enough outside the context of
litigation; having litigation as the starting point for a relationship makes
earning that trust all the harder. Spending time in overcoming such
barriers will assist the discovery process.
Concluding Thoughts on Cross-Jurisdictional E-Discovery
In the digital age possession and control of information located off shore
will be easy to prove and obtaining the information for discovery purposes
should not be difficult. Nevertheless it is clear that local laws relating to
privacy and data protection must be taken into account and in my view
should be drawn to a Judges attention should
cross jurisdictional
discovery be sought so that, upon making an order, a Court is fully
informed of all matters pertaining to compliance.

17

Part 3 - Information Governance, Big Data and E-Discovery

To understand the challenges that Big Data poses for the discovery
process in general and the e-discovery process in particular it is necessary
to understand the nature of Big Data, some of its properties and how it
can be analysed and grouped before it can be used meaningfully in the
discovery and e-discovery process. As is the case with e-discovery, Big
Data must be manipulated to a management size to enable meaningful
document review to take place that is both relevant and proportional to
the dispute before the court.
The term Big Data was first coined in the 1970s but it was not until the
enabling technologies became available that Big Data became a reality. In
the past the phenomenon was restricted only to the research field but now
Big Data analysis is required in many commercial fields and services
which reflect our modern society.
Big data19 is a broad term for data sets so large or complex that
traditional data processing applications are inadequate.20 Big data is a set
of techniques and technologies that require new forms of integration to
uncover large hidden values from large datasets that are diverse,
complex, and of a massive scale. Challenges posed by these datasets
include analysis, capture, curation, searching , sharing, storage, transfer,
visualization, and information privacy. The advantages of analysis of data
sets can find new correlations, to spot business trends, prevent diseases,
combat crime and so on.21
Data sets grow in size in part because they are increasingly being
supplemented by cheap, numerous information-sensing mobile devices,
aerial sensory technologies (remote sensing), software logs, cameras,
microphones, radio-frequency identification (RFID) readers, and wireless
sensor networks. The world's technological per-capita capacity to store
information has roughly doubled every 40 months since the 1980s; as of
2012, every day 2.5 exabytes (2.51018) of data were created; The
19

The term Big Data," which spans computer science and statistics/econometrics, probably
originated in lunch-table conversations at Silicon Graphics Inc. (SGI) in the mid 1990s,in which John
Mashey figured prominently. The first significant academic references are arguably Weiss and
Indurkhya (1998) in computer science and Diebold (2000) in statistics/econometrics. An
unpublished 2001 research note by Douglas Laney at Gartner enriched the concept significantly.
Hence the term \Big Data" appears reasonably attributed to Massey, Indurkhya and Weiss, Diebold,
and Laney. See Diebold, Francis X., On the Origin(s) and Development of the Term 'Big Data' (September 21, 2012).
PIER Working Paper No. 12-037. Available at SSRN: http://ssrn.com/abstract=2152421 or
http://dx.doi.org/10.2139/ssrn.2152421

20 The term often refers more to the use of predictive analytics or other
certain advanced methods to extract value from data, rather than to a
particular size of data set.
21 Scientists, for example, encounter limitations in e-Science work,
including meteorology, genomics, connectomics, complex physics
simulations, and biological and environmental research.
18

challenge for large enterprises is determining who should own big data
initiatives that straddle the entire organization
The big of Big Data is a relative term. Some organisations may have
Gigabytes or Terabytes of data in comparison to big global organisations
that may have several Petabytes or Exabyte of data to handle. However,
it is a reality of life in the digital paradigm that data is going increase day
by day and its volume will depend upon the size of the organisation.
Characteristics of Big Data
In a 2001 research report and related lectures, META Group (now Gartner)
analyst Doug Laney defined data growth challenges and opportunities as
being three-dimensional, i.e. increasing volume (amount of data), velocity
(speed of data in and out), and variety (range of data types and sources).
Gartner, and now much of the industry, continue to use this "3Vs" model
for describing big data. In 2012, Gartner updated its definition as follows:
"Big data is high volume, high velocity, and/or high variety information
assets that require new forms of processing to enable enhanced decision
making, insight discovery and process optimization." Additionally, a new V
- "Veracity" - is added by some organizations to describe it together with
complexity which describes as aspect of data management.
The Internet of Things (IoT) is associated with Big Data in that the
connectivity of multiple objects contributes to the data pool. IoT is the
network of physical objects or "things" embedded with electronics,
software, sensors and connectivity to enable it to achieve greater value
and service by exchanging data with the manufacturer, operator and/or
other connected devices. Each thing is uniquely identifiable through its
embedded computing system but is able to interoperate within the
existing Internet infrastructure.
Typically, IoT is expected to offer advanced connectivity of devices,
systems, and services that goes beyond machine-to-machine
communications (M2M) and covers a variety of protocols, domains, and
applications. The interconnection of these embedded devices (including
smart objects), is expected to usher in automation in nearly all fields,
while also enabling advanced applications like a Smart Grid.
Things, in the IoT, can refer to a wide variety of devices such as heart
monitoring implants, biochip transponders on farm animals, electric clams
in coastal waters, automobiles with built-in sensors, or field operation
devices that assist fire-fighters in search and rescue. These devices collect
useful data with the help of various existing technologies and then
autonomously flow the data between other devices. Current market
examples include smart thermostat systems and washer/dryers that
utilize wifi for remote monitoring.
Besides the plethora of new application areas for Internet connected
automation to expand into, IoT is also expected to generate large
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amounts of data from diverse locations that is aggregated at a very highvelocity, thereby increasing the need to better index, store and process
such data
Challenges to Information Governance
One of the major aspects of Information Governance, project management
and risk assessment is that potentially discoverable data is located within
a single organisation albeit spread across a large number of devices and
often across a number of jurisdictions. Nevertheless, the data is contained
within a circumscribed space.
Big Data and the Internet of Things exponentially magnifies the spread of
potentially discoverable data beyond an organisation involved in litigation
and in many respects highlights the importance of circumscribed
discovery rules based on relevance and proportionality. Nevertheless Big
Data and the Internet of Things provide exciting evidential opportunities
not previously available.
From the point of view of the obligations of a party to litigation the major
requirement for discovery that it relate to documents, information or
data under its control - still prevail depending upon the provisions of local
rules. The problem arises when a party to litigation has been receiving
datasets originating from Big Data or information forming a dataset
obtained from embedded devices. In this way, data added to an
organisations self-generated dataset has in a microcosmic sense,
characteristics of Big Data. Proper Information Governance must take this
into account. At the root of any Information Governance strategy or
process is the ability to identify, collect, index and analyse big data. In
many respects proper Information Governance has within it a number of
aspects of the e-discovery process.
The process involves gathering information from a diverse range of
sources, storing that content and then developing systems so the
information can be mined, analyzed and produced. Big data require an IT
environment that can easily scale to handle high electronic data discovery
processing without experiencing technical problems.
Information Governance Strategy
It is important to start out by creating and putting into place a
comprehensive data management program for compliance with
regulations, statutes and best practices. This should involve the
development of customized guidelines and procedures for the creation,
storage and disposition of any and all types of data. Also it is advisable to
create email policies, litigation hold procedures and disaster recovery
plans.

20

Many organizations find that one way to improve efficiency and reduce
costs is by performing an inventory of enterprise data. developing a
data classification process and creating a data retention policy. This then
leads to the development of organizational management policies and
procedures for electronically stored information (ESI) that include
electronic email policies and develop workflows to deal with the potential
for large amounts of non-searchable data, including hard copy documents.
Finally, attention should be turned to security issues as part of an
information governance strategy. CIOs should stay current on regulatory
and legal data security obligations so they can create a data security
approach based on repeatable and defensible best practices. A data
breach response plan should be created that is unique to the particular
organization.
Information Governance as Pre-Discovery
Engaging in litigation is not a front-of-mind matter for most
organisations, but it is a reality of life in the commercial world, and
effective Information Governance management can lessen the cost and
inconvenience when proceedings are contemplated.
Utilising data analytics will organise and reduce the dataset with flow-on
benefits in the e-discovery process. There will be fewer documents to
review thus cutting costs at the litigation stage of the information lifecycle. Furthermore, those documents that are reviewed are the most
conceptually relevant documents to the case. Documents for review are
not haphazardly batched, thus allowing for a more focussed e-discovery
review with reduced costs.
Review is the greatest cost factor in e-discovery and expert reviewers are
expensive. If a large amount of time is spent reviewing irrelevant
documents this adds to the cost. Presenting a body of documents without
applying machine learning first is not cost-efficient and can result in
disproportionate costs, especially when proportionality is a feature of
common-law e-discovery processes. In many jurisdictions, litigants may
have to estimate discovery costs and questions may be asked, if costs are
high, about the nature of information governance processes and policies.
The cost benefits of organizing and analyzing content proactively using a
pre-discovery strategy are considerable, helping to drive decision
making and information governance practices for compliance, risk
mitigation and cost avoidance. Applying these strategies early can provide
a tremendous advantage long term through a much more proactive and
cost-effective approach to information governance and e-discovery.
Information Governance and Big Data
As businesses begin to find value in the utilisation of IOT data the
consequences for e-discovery and information governance become even
more significant.
21

If one looks at the broader aspects of information governance it becomes

clear that within the litigation context, e-discovery in itself is a subset of a
larger Information Governance process.
Although clients may consider data analytics are only relevant in terms of
the litigation environment, a proper information governance strategy is
essential for any organisation with the flood of data that is coming in,
particularly as the result of the IOT. Although high performing data
analytics can reduce the time and cost of preparing for a case, at the root
of any e-discovery project is the ability to initially identify collect index
and analyse Big Data.
Thus it is important to develop a strategy for Information Governance
putting into place a comprehensive data management programme for
compliance with regulations, statutes and best practices before litigation
commences. It should involve the development of customised guidelines
and procedures for the creation storage and disposition of all and any type
of data along with email policies litigation hold procedures and disaster
recovery plans. One step may be the development of a data classification
process and a data retention policy. From there it is possible to develop
organisational management policies and procedures for ESI including
email policies and develop work flows to deal with the potential for large
amounts of non searchable data including hard copy documents.
Security issues must be part of an Information Governance strategy which
will require current awareness of regulatory and legal data security
obligations so that a data security approach can be developed based on
repeatable and defensible best practices.
A proper Information Governance programme which recognises that ediscovery is an aspect of Information Governance will make the ediscovery process a lot easier and cheaper in the event of litigation.
Although it may seem pessimistic to plan for a Court case, proper
Information Governance will not only assist the lawyers in effectively
carrying out an economical e-discovery process but will also assist overall
document management and information management within the
organisation. Early organisation of information into easily reviewable data
sets by way of key words searching concept searching analytics or TAR will
provide benefits further down the track and furthermore these processes
should not be considered limited only to e-discovery but to other forms of
data analytics.
An organisation that is utilising Big Data sets or data sets derived from the
IOT are necessarily going to have to engage in an analytics exercise in any
event so a proper Information Governance strategy is essential.

22

Thus I suggest that pre-discovery in fact occurs not at the Early Case
Assessment level but rather at the Information Governance level as
suggested by the EDRM model. Information governance enables an
organisation to effectively use information for a number of purposes of
which e-discovery is but a part.
Final Thoughts
The importance of data analytics is not just limited to e-discovery but
significantly to overall Information Governance. Analytics as an aspect of
what could be called pre-discovery organises a companys data long
before it is needed in e-discovery.
Applying text analytics to an
organisations electronic records proactively through pre-discovery means
that data is already organised reduced and ready to be presented if and
when a matter arises.
The return on investment is obvious. Litigation costs are kept as low as
possible and the time that it takes to investigate or decide whether to
settle a case or proceed to court is reduced.
The cost benefits of organising and analysing content proactively are
significant and help to drive decision making and Information Governance
practices for compliance, risk mitigation, cost avoidance and just as
importantly for future planning and for the development of corporate
strategy based upon data returns.

23