This is a guest post to WestBlog from Greg Bell, principal attorney editor at Thomson Reuters in Rochester, New York:
In the new era of e-discovery you need to think globally and act globally
The globalization of business, workplaces, finance and other areas of our lives has spread to all areas of legal practice. An emerging issue in discovery, and frankly in litigation itself, is the effect of this internationalization on litigation especially on the discovery process and discovery of electronically stored information (ESI) in litigation.
On Tuesday, the second day of LegalTech NewYork 2009, I checked out the panel, “Multilingual Madness: Globalization is Colliding with the Complexity of E-Discovery,” which explored this emerging issue in discovery and, especially, in the context of discovery of ESI.
The question is not whether you will have international issues in discovery during litigation in cases arising in your own jurisdiction – you will and it will happen more and more often – it has become more about how do you manage the complexity created by those differences? That’s evident, even when litigating a case that on its surface doesn’t involve another country.
The panelists, including moderator Matthew Tulchin, with Ken Nourse, Charles Cohen, Michelle Mahoney and Mark Surguy, representing Asia, the United States, Australia and the United Kingdom, respectively (the world, of course, is even much more diverse than that they represented).
Cohen set out the characteristics of the U.S. system of discovery as a sort of baseline, followed by each of the other panelists discussing how what’s going on in their countries/regions as a contrast. Their presentation raised issues for today’s practitioners and their clients, including: Where are the documents actually located? How do we manage information across the globe and in multiple languages and writing systems? What are the unique issues in collecting documents, filtering, processing and production of relevant ESI that may be in multiple languages other than English?
The complexities and potential for additional expense that these issues involve cannot be ignored.
Practitioners should think about international discovery at the outset of a matter, put it on your intake checklist. If you do find that discovery of ESI in another country is necessary, find partners to work with in the countries as they will be vital in understanding the challenges that cultural differences, language (multilingual in some countries or regions) and infrastructure of the country may present. Try to network globally to find out more. There are vast differences in the lawyers and judiciaries of countries in the level of understanding of ESI, so they may have to be educated as well.
Michelle Mahoney put it well. She encouraged practitioners to embrace international differences and their effect on discovery and work through the challenges they pose creatively.
For me, it opened up a new area to explore in how our products and services might help lawyers and their clients work through them as well.
Greg Bell
Principal Attorney Editor
Thomson Reuters
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