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An international e-discovery roll out is often overwhelming for in-house and outside counsel, and can be riddled with roadblocks and unexpected problems. Legal teams dealing with cross-border matters need three essential ingredients—experienced people, advanced technology and targeted processes—to successfully execute a global e-discovery implementation. A playbook that enables consistent processes for matters across numerous countries is key to completing the project defensibly, on time and on budget.

One of the traps counsel may fall into is being overly focused on technology challenges. Technology is only one of three important pillars of success. Knowledgeable experts to advise on and run strategy, and consistent and repeatable processes must be locked in alongside effective technology. Technology can inform processes, but people are the lynchpin to make sure the tools are actually enabling the strategy and workflows. Equal deference must be paid to all three parts for every e-discovery effort, but especially in matters that are complicated by work across international borders.

Understanding the unique nuances of the country where an e-discovery program is being rolled out is critical to establishing efficient and repeatable workflows. In-country data requirements and regulations, local understanding of e-discovery, culture and language will all come into play, making it impossible to overlay what's been done for U.S. matters in another country. Translating the success achieved in U.S. programs to other jurisdictions depends on knowledge about a variety of considerations that vary from region to region, including:

  • Navigating data privacy laws such as Europe's General Data Protection Regulation (GDPR) and China's State Secrets and cybersecurity laws;
  • Political climates (such as uncertainty about how Brexit will impact legal and regulatory matters in the UK and Europe);
  • Cultural barriers including local customs, holidays and standard work hours;
  • Taxes and tariffs on importing software and hardware; and
  • Language and communication.

The first step in creating a playbook for consistent processes across global matters is to source experts who deeply understand the landscape of the country where the work will be done. These people can advise on where to make adjustments to existing best practices and templates, navigate cultural barriers and help obtain buy-in of the people on-site. Leveraging experts' knowledge to establish and clearly articulate consistent processes, objectives and benchmarks will also ensure important steps and expectations are not lost in translation.

Assigning ownership is another important step that helps clients ensure proper identification and accountability of a lead person or group. Early on, identify a person or group of people that are responsible for leading operations, defining how things will be handled and responding when roadblocks arise. With these pieces in place, the team will be enabled to move quickly with setting up technical operations and executing the work.

With the foundation of people, process and technology in place, repeatability can be enabled for future matters. A standard playbook should include:

  • Version controls and templates to keep systems in sync;
  • Standard workflows and procedures, tailored to each country's needs, across collection, processing, analysis and review;
  • Elimination of overlap and data de-duplication between instances;
  • Documentation to enable auditability of work;
  • Security and backups to ensure redundancy and access control;
  • Global training that gets everyone speaking a common language, at least from the e-discovery perspective;
  • Chain of custody;
  • A documented plan for how the data will be disposed or archived after the project concludes; and
  • Continual evaluation of infrastructure performance with improvements and updates made as needed.

All plans are perfect until put into place, but issues will inevitably arise. This is why auditing is so important. When someone deviates from the playbook, the team can track back everything that has happened, easily right the course, then act on the lessons learned. Constant and regular communication with the boots on the ground and proactive assessment of what may go wrong will help keep the team on track, making operating across borders much more efficient.

 

Wendy King is a Managing Director in FTI Consulting's Technology practice and is based in Atlanta. Ms. King brings more than 15 years of experience in e-discovery practice support working alongside legal and technology teams to find the most efficient use of litigation technology. Daryl Teshima is a Senior Managing Director in FTI Consulting's Technology practice and is based in Los Angeles. Mr. Teshima assists clients with the electronic data discovery process in litigation and government investigations, and in developing in-house corporate e-discovery and records management programs.