The EDiscovery & Disclosure 2018 guide provides expert legal commentary on key issues for businesses. The guide covers the important developments in the most significant jurisdictions.
Last Updated January 11, 2018
Ninety-seven percent of the information generated by litigants throughout the modern world is generated in electronic form. Less than a few percentage points of that information will ever be reduced to paper form during its lifetime. The truth – documentary evidence relevant to civil litigation, arbitration and investigations is found in electronic form, commonly referred to as “electronically stored information” (ESI). This reality is a global one in today’s information age where data itself has become ubiquitous in almost every country, given the development of a globalised marketplace and the advent of electronic media platforms that do not recognise geographic borders. Despite this reality, the United States (US) and only a handful of other countries have adapted their legal systems – be it litigation to arbitration to investigations – to require the discovery or disclosure of ESI.
The Chambers Global Guide of E-Discovery/E-Disclosure (the Guide) is a general survey of exemplar countries (12) that attempts to identify the extent to which the respective countries have adopted rules and procedures to address the discovery/disclosure of electronic evidence, either formally or informally, including rules/procedures around its preservation, production and protection of privileged information within such ESI. The Guide also attempts to highlight whether privacy regimes exist or other prohibitions within these jurisdictions that directly impact the discovery/disclosure of ESI, including whether such information can be transferred out of a jurisdiction in order to comply with extra-territorial discovery obligations of a party.
The rise of e-discovery in the United States
In the US, parties have the ability to discover documentary evidence relating to claims and defences in civil litigation. As applied in practice, discovery has been a broad inquiry under which parties exchange information prior to any trial in the matter. The discovery process itself is largely conducted by parties as a matter of right, where the courts typically do not intervene in the process unless requested. The rules surrounding documentary discovery were first codified in 1938, undergoing many changes since that time. Until 2006, however, documentary discovery was almost exclusively focused on the discovery of paper records.
At around the turn of the century, federal courts began to recognise that the electronic world had changed the way people and corporations communicate and generate information. In 2006, the United States federal courts transformed the nature of discovery by mandating the discovery of ESI relevant to claims and defences in all civil litigation. The federal rules set forth procedural rules governing the circumstances under which ESI is subject to discovery, including the scope of discovery, the format for the production of ESI and the protection of privileged information. In late 2015, those rules were amended to further refine the scope of discovery of ESI, with changes that emphasise that such discovery should be proportional in nature.
A decade later, the discovery of ESI in the US is commonplace. In fact, major US law firms have partners and technical specialists devoted to the search for, review of and production of ESI. A multi-billion-dollar vendor industry, in fact, has arisen to support lawyers in the conduct of ESI across the various components of e-discovery as reflected in the E-Discovery Reference Model and described more fully below:
E-discovery/e-disclosure outside the United States
Outside the US, countries generally fall into common law and civil law jurisdictions. Common law countries generally have rules or practice guides similar to US rules of procedure that govern the scope of disclosure/discovery in civil matters. Generally, discovery is very limited in nature and typically imposes requirements at the outset of a case to disclose the evidence that supports or refutes the claims and defences in a case. After those initial disclosure requirements are satisfied, the right to obtain additional discovery is generally limited. With many civil countries (eg the UK, Ireland and Canada), rules or practice guides have been amended since 2006 to require or permit the disclosure/discovery of ESI. Those rules or practice guides, however, are limited in the nature and extent of the permissible discovery of ESI. Moreover, most of these jurisdictions employ proportionality as a strict limitation on the scope of the disclosure/discovery permitted, which is an essential component that is built into their common law.
Civil law countries, on the other hand, do not have or require self-executing disclosure/discovery as a matter of obligation or right. In fact, disclosure/discovery is generally limited in nature and often supervised and conducted by a court itself. In most of these jurisdictions, there exists little or no written rules or procedures expressly permitting or prohibiting the discovery of ESI. Accordingly, whether and to what extent there is disclosure and discovery of ESI varies widely from jurisdiction to jurisdiction and case to case. Outside of larger commercial matters, the disclosure/discovery of ESI generally does not occur.
Impact of investigations/arbitrations on e-discovery/e-disclosure
It is important to recognise that civil litigation is only one means by which e-discovery/e-disclosure can occur. Globally, regulators have extensive civil authority to conduct expansive investigations either voluntarily or involuntarily. To that end, regulators understand that most of the evidence relevant to their inquiry is found in electronic – not paper – form. Regulators, therefore, often drive the discovery or disclosure of ESI by demanding the target of the investigation undertake the discovery/disclosure of ESI or, in the case of a dawn raid, the regulatory body itself conducts the e-discovery/e-disclosure. It is not uncommon, for example, for many regulatory agencies to have sophisticated software designed to search for and review ESI. Thus, even in civil law countries that do not expressly permit the disclosure/discovery of ESI as part of their civil litigation systems, there is often e-discovery/e-disclosure conducted in those jurisdictions as part of the regulatory process.
On a similar note, arbitration has become a common means to resolve commercial disputes throughout the globe to include many common law and civil law countries. The rules of the various arbitration organisations vary widely in terms of the scope and permissibility of e-discovery/e-disclosure as a party of the arbitration process. Increasingly, however, US-style e-discovery/e-disclosure is becoming more common in the context of international arbitration.
Cross-border discovery – tensions between protecting privacy and permitting e-discovery/e-disclosure
No survey on global e-discovery/e-disclosure would be complete without consideration of the existence and impact of privacy laws. Outside the US, the protection of personal and private information is an inherent right. That right, in fact, often outweighs a party’s right to engage in discovery that might implicate the disclosure of personal and private data. In addition, the privacy laws of certain countries also limit the ability and extent to which personal and private data can be transferred from one jurisdiction to another. For example, the EU, under its existing privacy directive and future General Data Protection Regulation, prohibits the transfer of data to countries that fail to take adequate steps to protect personal and private data of European citizens. Accordingly, that data cannot be “processed” or “transferred” without a legitimate reason to do so and, even then, must be done so under circumstances that limit and protect the nature of any disclosure. In many instances, such personal and private data cannot be transferred without notice and consent of the data owner and/or the data protection authority.
Cross-border discovery – blocking and national security statutes
Privacy is not the only roadblock to e-discovery/e-disclosure. Since the 1980s, certain counties have attempted to implement statutes that inhibit the ability to obtain US-style discovery within their borders by expressly prohibiting the transfer of data outside of their borders for litigation or investigation purposes. By way of example, France has criminalised the act of obtaining discovery from French citizens for use in an investigation or litigation outside its borders. Other countries have similarly implemented national security laws prohibiting the transfer of data outside of their borders that implicate national security. In practice, such countries have construed those acts to prohibit the transfer of any data that would touch the countries’ economies, essentially prohibiting the transfer of information relevant to many civil disputes.
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Set forth below by each jurisdiction is a summary of basic information around the applicable e-discovery/e-discovery regimes. We would note that the rules and procedures in this area, especially around the issue of privacy and its relationship to the processing and transfer of personal and private ESI in the context of litigation, are in a constant state of flux. We hope that you find the Guide helpful as a starting point to understanding the state of e-discovery/e-disclosure around the globe. With this said, it important that you consult with counsel within the respective jurisdictions regarding the current state of the rules and procedures governing e-discovery/e-disclosure before you attempt to process or transfer ESI.