The International eDiscovery Quagmire

The need for discovery preparedness has intensified in recent years, as more companies – large and small – continue to fall victim to devastating eDiscovery costs and unfavorable litigation proceedings in the digital sphere. Much of this is the product of a conscious ignorance to the technology and industry at large, which is characterized by a company’s simple approach to eDiscovery marked by leaving all associated tasks to in-house consel.

This is simply unnecessary, and extremely dangerous. In-house counsel will almost never possess the knowledge necessary to manage ESI archiving, predictive coding software, computer-assisted review and other tasks related to eDiscovery. Further, as more companies begin to move operations across borders, this creates much more complex issues related to electronic litigation proceedings.

Going abroad with eDiscovery

Law Technology Review (LTN) recently reported that Judge Shira Scheindlin of the U.S. District Court in the Southern District of New York offered guidance regarding overseas eDiscovery during the Georgetown Advanced eDiscovery Institute Friday panel “First Do No Harm: Preserving and Admitting Foreign ESI.” According to the news provider, Judge Scheindlin believes that the biggest dilemma companies and courts face when dealing with international eDiscovery is properly establishing the trigger that forces businesses to retain data.

According to the news provider, this is especially crucial when it comes to the initiation of legal holds following a litigation request, and establishing a definition that will give businesses a better idea of anticipatory responsibilities is much more complex in these situations.

“Preservation is not simple, even in the U.S. We don’t have a statute on preservation; we have been talking about writing one, to be added to the Federal Rules of Civil Procedure, but haven’t.” Scheindlin explained, according to LTN. The source noted that she said there is some precedence set from existing case law. “Preservation principals found in sanction cases, where people didn’t do it right. Legal holds beyond U.S. borders [are] an alien concept.”

Other members of the panel explained how high the stakes are for international eDiscovery, and how businesses need to develop much stronger acumen to remain secure.

Getting the right support

As many studies indicate most U.S. businesses are not even close to being prepared for discovery requests and electronic litigation proceedings, even more are will be dumbfounded by these processes when they have international implications. Executives should consider getting their in-house counsel the support they need through the procurement of services and software from a proven electronic litigation solutions firm.