Extract from David Sannar and Rachel Teisch’s article “Part II: Practical Considerations for U.S. Legal Teams Taking Discovery to Asia”
[This is the second in a two-part Q&A between Rachel Teisch, Catalyst’s director of product marketing, and Dave Sannar, Catalyst’s head of Asia operations. Part I discussed trends and cultural differences U.S. legal teams should be aware of before embarking on cross-border discovery in Asia. Part II focuses on tactical considerations for collecting, processing, reviewing and transferring data subject to litigation, investigations and regulatory compliance.]
Q: Before starting a cross-border project in Asia, what are the most important things U.S.-based legal teams need to know?
A: That’s a big question. There are a lot factors that complicate U.S.-style discovery in Asia, so many that we could write a book on it. Obviously, one is the local laws and regulations that I mentioned in my previous post. For example, nearly every country or jurisdiction has cross-border data transfer rules and/or laws.
There are also differences in local business customs that U.S. lawyers are often unused to navigating. For example, in Japan, omotenashi, which describes hospitality, reaches far deeper as a form of networking and gift-giving in which influential business relationships are formed to facilitate business and other deals, with a quid pro quo established. As you can imagine, this form of hospitality can cause practical problems for in-house counsel in Japan engaging in these practices, such as the risk of running afoul of U.S. regulations, in the Foreign Corrupt Practices Act and the UK Bribery Act in England. Nearly every country has similar types of reciprocity customs that run into this gray area.