Article by: Kyle Reykalin / FRONTEO

Conducting cost-effective and efficient e-discovery for Foreign Corrupt Practices Act investigations involving U.S. and Japanese companies requires a rare combination of legal, cultural and technological skills. Here are seven common obstacles, and practical tips to help e-discovery teams overcome them.

1. Bridge dissimilar legal systems. It’s important to understand the differences between the two legal systems. Japanese in-house counsel are often surprised at the scope, expense and formality of the American discovery process, as well as the danger that their confidential business documents and strategies might be shared. American attorneys occasionally assume that the in-house legal departments of large Japanese corporations are familiar with uniquely American legal concepts, such as attorney-client privilege. Care must be taken to clearly explain the requirements of confidentiality, electronically stored information collection, the obligations of legal hold and other discovery concepts.
2. Know the culture and business practices. An experienced local team adds great value. They will be familiar with Japanese customs and culture, as well as the ebb and flow of FCPA cases. For example, when deciding on keywords for your data set, there are similarities across matters in the terms used in discussions of bribery or payoffs. In Japan, the practice of offering gifts or honoraria to important business partners and clients is customary and can be difficult to discern from a bribe. On the other hand, seemingly ordinary language about gifts or payments may mask illicit behaviors prohibited under the FCPA. The nuances of language are critically important, especially for developing effective search terms and evaluating results.
3. Establish a local or regional team. An experienced provider will have processes for compliance with local data privacy laws, and may offer local hosting as well. The availability of bilingual or multilingual review attorneys in multiple regions allows for flexibility in staffing document review, privilege review and quality control phases, and obviates any concerns about data leaving the country.
4. Take advantage of technology assisted review (TAR). The use of advanced analytics in early case assessment and in batching documents for review assignments can improve efficiency in most cases, especially those where, as mentioned above, determining keywords is difficult. We often batch documents by topic, rather than by custodian. In a competitive or antitrust investigation, for example, batching documents by product family or project, and including entire email threads and attachments, provides the reviewer with a cohesive topic, revealing important issues and events, leading to more consistent coding and quickly making reviewers knowledgeable about key topics.
5. Plan for multilanguage content. Document collections in global FCPA cases are often a mix of multiple languages: Japanese and English, and sometimes others. This is a result of normal business communication among subsidiaries, suppliers, sales channels and customers across global regions. Tools designed for English do not always work well with multibyte character sets and tokenization issues in Chinese, Japanese and Korean content. An experienced provider will have solutions for Asian language challenges, such as encoded content and support for conversation threading.
6. Minimize translation. Translation of documents increases cost and adds the risk of challenges by the opposing side. It may also invite misinterpretation of the documents. In some investigations, especially criminal matters, the government may require that all documents handed over as part of a proffer be translated into English. But in civil litigation, the court may only require translation of documents to be used as deposition exhibits, attachments to briefs or trial exhibits. In either case, conducting a first-cut review to determine relevance before translation of documents reduces the volume of high-cost translations.
7. Conduct a thorough privilege review. The concept of attorney-client privilege as we know it in the U.S. does not really exist in Japan. Thus, Japanese attorneys without experience in American litigation are not familiar with our tests for privilege and work product. Conduct a focused privilege review performed by an attorney who is well-versed in attorney-client privilege. Conduct a follow-on quality review of documents marked not privileged to catch coding errors.

Managing e-discovery in response to FCPA investigations in Japan involves a fascinating mix of legal, cultural, linguistic and technical challenges. An experienced e-discovery provider working in partnership with U.S. litigation counsel and local law departments can help foresee and avoid costly blunders.

Kyle Reykalin is director of review services at FRONTEO in Tokyo, where he manages large-scale e-discovery review projects and specializes particularly in Japan-U.S. cross-border litigation, including civil and criminal antitrust matters, FCPA investigations and other U.S. government investigations. He can be reached at kyle_reykalin@fronteo.com.

Article by: Charlie Platt / iDiscovery Solutions

I’ve written on this topic before, and despite the danger of sounding like a broken record, I will repeat myself: Cybersecurity is all about risk management. Many of you are likely working with your company’s chief information security officer (CISO) and security teams to help assess and control this cyberrisk. (At least I hope you are.) And one of the first things most security professionals recommend is taking an inventory of your IT assets. In fact, it’s embodied in the first Function of the National Institute of Standards and Technology’s (NIST) Cybersecurity Framework:

“The activities in the Identify Function are foundational for effective use of the Framework. Understanding the business context, the resources that support critical functions, and the related cybersecurity risks enables an organization to focus and prioritize its efforts, consistent with its risk management strategy and business needs. Examples of outcome Categories within this Function include: Asset Management; Business Environment; Governance; Risk Assessment; and Risk Management Strategy.”

Continue Reading Are You Accounting for One of Your Largest Cybersecurity Risks?

Interview with Scott Lefton/AccessData

Scott Lefton is a senior sales engineer at AccessData. Though he is not directly involved in conducting or supervising investigations, he spends a lot of time talking to the people who do, including chief security officers, people in HR and, of course, in-house lawyers. He listens to their “woes,” he said, and suggests software designed to help them. His remarks have been edited for length and style. 

Continue Reading For Internal Investigations, Technology is Playing Catch-up with Technology: Companies focus on hackers and data, and sometimes overlook inside threats

Interview with Teresa Lavoie / Fish & Richardson

Teresa Lavoie, a principal at Fish & Richardson, didn’t start out planning to practice law. Her background is in science, and her first quasi-legal position was working as a patent liaison at a biotech startup before she decided to attend law school. But that was obviously a good career move. She’s been working with startups ever since, and Lavoie has become one of the most sought-after life sciences patent attorneys in the world. The interview has been edited for style and length.

Continue Reading How a Patent Prosecutor/Strategic Adviser Racks Up Wins: Building strong patent portfolios builds value in growing companies

Kevin Caulfield, a product line director at Wolters Kluwer ELM Solutions, understands that general counsel don’t want their departments to be viewed solely as cost centers. Many of them strive to show how they can be good business partners with other parts of their organization by focusing on initiatives that will help reduce costs and generate revenue. To Caulfield, one of the ways this can be achieved is through enterprise legal management technology. Although many long-established corporate legal departments have already made good use of this technology, he says, there are many growing companies that still may not realize the benefits of an enterprise legal management solution. His remarks have been edited for length and style.

Continue Reading Is It Time to Automate? Eager to avoid being seen as cost centers, law departments are increasingly leveraging technology

Ransomware. Just the word itself is enough to chill the hearts of everyone from personal users to IT professionals to senior executives. May 12th’s massive attack took down hundreds, perhaps thousands, of companies and unknown numbers of individuals and institutions, including the United Kingdom’s healthcare systems (with possible impacts including critical patient care and historical medical records).

Continue Reading How to Protect Your Company from Ransomware Attacks

“Text mining” refers to software that can find patterns in text and extract meaning from them. It offers plenty of useful applications. For instance, law departments can benefit from text mining any time they collect a fair number of comments from surveys. I have used it myself for client projects.

Here’s how it might be useful for you. Let’s assume that a large number of your internal clients completed a satisfaction survey. One question was open-ended: “Overall, what would you like to say to the law department?” As a complement to coding those remarks by hand, text-mining software can spot commonly used words, classify the comment as favorable or unfavorable and even tease out thematic topics.

Continue Reading Text Mining Can Help You Drill Down

By David White / AlixPartners LLP

Responding to data breaches can be a tricky business. If not managed correctly, corporate liability can easily be exponentially compounded. The key to successfully managing any complex crisis lies in the planning. It’s important to develop a carefully laid-out process long before the fire alarms start ringing. Once they do, there’s usually not much space for thinking of creative solutions. That’s why we map out our escape routes and post them on the wall for all to see.

Continue Reading The Data Breach Response: Who Will You Tell?

By T. Sean Kelly / FTI Technology

T. Sean Kelly, a senior director at FTI Technology, spends a lot of his time helping clients implement, and conduct information governance and e-discovery using, Microsoft Office 365. Kelly previously worked for Johnson & Johnson, where he was responsible for e-discovery issues across business sectors, advising internal stakeholders and outside counsel on best practices in collection, forensic technology, document review and cost control. The interview has been edited for style and length.

Continue Reading Ready for an Upgrade? What you need to know about Microsoft Office 365