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 email@example.com.