As U.S. litigators and U.S. courts begin to gain some level of comfort with advanced e-discovery practices, new challenges have emerged in the form of cross-border discovery. While most U.S. attorneys are aware that there are challenges associated with collecting data from individuals and entities in Europe and Asia, they tend to focus primarily on the legal and technical challenges presented by the data privacy and security laws in those regions.
A recent article in Law Technology News by Chris DeMarco, entitled “Culture Shock: The Human Side of E-Discovery,” reminds us that people are still an essential part of the e-discovery process, particularly in the pre-collection stages, and that cultural differences can also impact the success of an e-discovery project abroad. Based on an interview with Ashley Smith, managing director at Navigant Consulting, Inc., who has conducted e-discovery projects throughout the world, the article provides a reminder of the importance of the human elements associated with e-discovery, such as strategy sessions and custodian interviews, and offers suggestions to manage cultural expectations to ensure a productive project, and ultimately to ensure that the process is defensible. Of particular importance is partnering with local counsel to gain a deeper understanding of the social norms and customs.
Although these considerations might seem far afield from the bits and bytes we’ve come to associate with e-discovery, the process is only as good as the people…no matter what side of the ocean they are on.
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