eDiscovery is often unpredictable. The variables only multiply when you introduce an international component. Knowing what questions to ask is crucial, and the sooner you get the answers to those questions, the better off you are. By anticipating those additional challenges ahead of time, you can build the right strategy that sets you up for success.
1. What are the laws that govern data privacy?
One of the first things you’ll want to consider is likely pretty obvious already: different countries have different laws! Sometimes an organization can simply hand over the personal data of its employees, but you certainly shouldn’t take that for granted. Sometimes, an organization’s ability to transfer that data in the first place is limited by local policies.
The European Union’s General Data Protection Regulation (GDPR) is the most famous of such regulations. The GDPR establishes standards of what data organizations can store on an ongoing basis. Compared to the U.S., there’s much stricter standards governing the level of consent that an organization must get from the employee in order to keep their information on file, or more importantly, share it with a third party. Organizations can incur hefty fines if noncompliant.
However, even if your project falls outside the purview of the GDPR, you still can’t assume that you should approach data the same way you would domestically. Jurisdictions all over the world are still hashing out their data privacy policies. Japan has their Act on the Protection of Personal Information, with new amendments set to take effect in 2022. Stateside, the most well-known is also have the California Consumer Privacy Act (CCPA), but we’re already seeing other states use that as a blueprint for their own rules. Virginia’s governor signed the Virginia Comprehensive Data Privacy Act earlier this year, and it will go into effect in 2023. A similar bill was also introduced in the New York State Senate.
There are fairly decent odds that between the time of this writing, and the time that you find this blog post in your internet meandering, some government somewhere has enacted or amended a privacy law. Make sure your team does their homework and is compliant with all relevant regulation.
2. How will we translate communications in other languages?
There are all sorts of ways in which language barriers can make discovery harder, but one of the hardest ones is translating relevant information into English for U.S. attorneys.
“[Machine] translation apps struggle with slang and can misinterpret the provided content,” says Jamente Cooper, Lead Forensic Analyst at Contact Discovery. “The data itself is still in commonly used databases or files but understanding the content as it was intended is still a daunting task.”
In a perfect world, you’d have actual humans who know the language in question doing review. This is your best shot at understanding how a native speaker might’ve intended their words.
In the imperfect world we actually live in, that’s not always possible. Oftentimes the most practical solution is something in the middle that utilizes technology and human knowledge. Maybe one or two reviewers actually know the other language, but English speakers can review digitally translated content and refer any trickier conversations to their teammates who can read the source language.
Before you start collection, start formulating your game plan for how you’re going to handle data in languages other than English. You’ll likely have to start looking for qualified reviewers earlier than you usually would to account for the extra challenge of a foreign language.
3. What apps are common in this market?
There are a few old standbys we go back to over and over again in the discovery world: emails; the word docs and pdfs that get attached to emails; in more recent years, text messages and other mobile apps have reached a similar level of prominence. However, messaging apps can vary in popularity depending on where you are on the globe.
During an international case you simply can’t take it for granted that custodians are communicating the same ways they would domestically. WhatsApp for example has a global userbase of over 2 billion, but only 75 million in the states. That means roughly 2/3 of the app’s users lie outside the United States. One study of Android devices showed that WhatsApp is the most popular chat app in 58 different countries. A Japanese-based app called LINE is virtually unheard-of in the U.S. but incredibly common in its home nation and some other Asian markets.
Every case is different, and you never want to confine yourself to business-as-usual data types without covering all your bases, even domestically. However, the possibility of overlooking an important data source goes up when you’re in a foreign market that has latched onto different communication channels.
4. How much data is there?
So yes, this is a common question regardless of where you’re doing your discovery project. However, you might be surprised at how much the sheer quantity of data changes when there’s an international dimension to your case.
In the U.S., we generate a lot of data. Personally, I’ve worked in U.S.-based offices where people commonly used email to communicate with coworkers who were literally in the same room. Many people see it as more polite to send an email or Slack message so that their teammate can get to the issue on their time rather than call someone or pop into their office without prior warning. The U.S. has also normalized talking about work outside regular hours, and using channels outside official company email accounts.
The result is piles and piles of data. In some ways that makes cases easier since your odds of finding relevant information go up when everything is so well documented. However, identifying and collecting that data becomes that much more daunting.
When discovery goes abroad, the social norms of how people communicate are different. In some places, it might be unthinkable to send work-related texts on a personal device. Maybe conversations that Americans would have over email instead happened over the phone. It could be a total waste of resources to collect lots of devices assuming that there’s more relevant data than there really is.
As important as it is to think of differences in the laws and technology, don’t underestimate how these kinds of alternative social norms can put a wrinkle in discovery. Do your research about how people tend to communicate, and adapt your strategy accordingly.
Are there any challenges you’ve faced in international discovery that you think more people need to be aware of? Let us know in the comments!