As businesses continue to globalize, so does the demand for global data in litigations, regulatory matters, and internal investigations. When thinking about eDiscovery from a global perspective, one size does not necessarily fit all. Organizations must consider what specific challenges they will face in tackling global eDiscovery or eDisclosure, which includes balancing the demands of local jurisdictions and rule of law against the desire for uniform process, which technology suits their case best, and what business processes need to be created. Below we speak to the challenges and considerations organizations may want to contemplate when handling a matter that has data located around the globe.
The Challenges of International eDiscovery
Some major challenges for organizations when the scope of a project exceeds U.S. borders are:
- Costs – the ability to maintain data centers, infrastructure, and/or licensing in regions globally where volumes are smaller and pre-trial discovery is not commonplace is difficult. This is exacerbated when considering the prospect of maintaining defensible offsite disaster recovery.
- Culture and business context – rationalizing the need and use of eDiscovery/eDisclosure and electronic data use with local team members can be challenging in locations that have differing legal systems and data privacy expectations compared to the U.S.
- Resources – given the cultural challenges and the decreased demand for eDiscovery outside the U.S., justifying dedicated headcount to handle eDiscovery can be difficult. Moreover, although perhaps necessary to implement and maintain a solution in country, justifying the expenditure for local staff when workload and demand may be sporadic or less than full time is a tricky proposition, particularly when considering local labor laws that may prohibit part time employment and make change of staff difficult.
- Risk – ensuring global cross-border eDiscovery does not violate any data protection or privacy laws within the countries of origin is no easy task. The world of data privacy and electronic data use is an ever-evolving minefield of regulation and control, differing from country to country. Keeping up with the latest developments and obligations is a fulltime job and one fraught with risk if not done properly or with the requisite attention and focus.
Organizations can establish an eDiscovery managed services program with a global eDiscovery services provider to limit risk, cost, and headaches. A well-orchestrated program can:
- Help mitigate costs and alleviate the need for your organization to incur capex expenses by providing a global footprint of data centers and technology solutions that you can utilize without the time and investment required to establish and maintain your own solution.
- Provide in country resources native to those regions who can help manage the cultural and linguistic divides. Because the service provider is operating on a larger scale they can provide resources and experts to match your needs even when those needs are not fulltime.
- Provide the resources to tackle both small and large-scale eDiscovery/eDisclosure projects as well as meet demanding deadlines while alleviating you of the HR and administrative burden of hiring and funding staff employees you may or may not need on a fulltime basis.
- Mitigate risk by providing expertise and intellectual capital to ensure data resides within borders and your activities comply with local data use laws and regulation if required.
Considerations for Choosing the Right Discovery Provider
When seeking a managed service provider to support your global discovery needs, your organization should be looking for a provider whose footprint mirrors your own. Below are factors to consider when conducting due diligence into providers:
- How long have they been offering eDiscovery services?
- In what regions, countries, and cities does the provider have offices and staff? Be sure to look at this carefully as some providers may have offices or technology in each location, but not staff. If having boots on the ground is important, be sure to clarify this prior to engaging a partner.
- What is number of staff in each office?
- What is the breakdown of staff by roles (i.e., sales, customer service or technical)?
- In what regions, countries, and cities are their data centers located?
- Do these data centers utilize a public or private cloud?
- Do they offer offsite, in country disaster recovery?
- What processing, hosting, and analytic technologies are offered in each data center, and are those technologies consistent across their locations? Ensuring a consistent global tech stack will help ensure you can apply the same processes and procedures globally, increasing the defensibility of your operation and mitigating risk.
- What is the daily processing through-put in each data center?
- What capabilities does the provider have to standup new data centers if needed based on client demand?
- Do they provide a follow-the-sun support model, and if they do, is it that offering based on in-country resources for each location?
As you evaluate potential eDiscovery managed service partners, you should research your previous global eDiscovery needs, understanding what went right and what went wrong. Your organization should define its specific goals and any challenges the business has faced in dealing with global discovery. The provider and the solution they offer should be customized to meet your specific needs, alleviate pain points, minimize cost, and maximize process efficiency.
Where a provider has boots on the ground can go a long way to ensuring success when dealing with global eDiscovery, especially when it is being driven by U.S. litigation or regulatory matters. Understanding the cultural differences that affect global discovery and electronic data use in areas of etiquette and communication can help overcome business-related problems and misunderstanding surrounding eDiscovery with foreign colleagues.
In looking at the software solutions being offered, look for providers that offer multiple processing, hosting, and analytic platforms, and offer those same options across their global platform Multi-platforms will allow for a broader range of file types that can be processed, which is more often a relevant conversation when working in non-U.S. markets where there are tools and data sources that can be commonplace in the local market, but yet not typically encountered in the U.S. Simply working with off-the-shelf platforms could prohibit the ability to process new and emerging files types, especially when they are being used outside the U.S. Providers who offer proprietary solutions will have greater flexibility in adapting their software to accommodate new file types faster than larger industry software providers. Hosting and analytic platforms should be intuitive and allow for customizable workflows. Having a provider that offers multiple platforms will allow for workflows that can be tailored to your organization’s unique needs while remaining defensible. Similarly, make sure the tool stack can handle the local languages relevant to your work and location.
Your managed service provider should be working with its internal compliance department as well as in-country experts to maintain a global cross-border data protection and privacy program that is built to ensure compliance with multiple international privacy regulations. These processes will ensure that the right contractual vehicles and protections are in place in accordance with applicable local regulatory requirements.
Establishing a successful global eDiscovery program will require partnering with a managed service provider whom you view as a trusted advisor and an expert in not only eDiscovery and eDisclosure, but in data privacy. This partner should have a vested interest in helping its clients solve complex discovery issues and achieving project goals while always looking out for its client’s best interests in the global context. Your provider should be committed to providing consistent, high caliber project management and solution design throughout the project life cycle, whether the delivery is limited to one region or whether it is a cross-border matter requiring a follow-the-sun model where its experts synchronize seamless delivery and communication.