Delivering Global Ediscovery Successfully. Emily A. Cobb, Ropes & Gray Andrew Szczech, Kroll Ontrack Thomas Sely, Kroll Ontrack

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1 Delivering Global Ediscovery Successfully Emily A. Cobb, Ropes & Gray Andrew Szczech, Kroll Ontrack Thomas Sely, Kroll Ontrack

2 Exclusive News and Analysis Monthly Members-Only Webcasts Networking with CEDS, Members On-Demand Training Resources Jobs Board bits + bytes Newsletter Affinity Partner Discounts ACEDS provides an excellent, much needed forum to train, network and stay current on critical information. Kimarie Stratos, General Counsel, Memorial Health Systems, Ft. Lauderdale Join Today! aceds.org/join

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4 Webinar Overview Introduction and Biographies Legal Frameworks Cultural Considerations Practical Experiences Questions 4

5 Emily A. Cobb, Ropes & Gray Emily A. Cobb is an associate and senior discovery attorney at Ropes & Gray, with expertise in electronic discovery across numerous practice areas. Ms. Cobb also maintains an active pro bono practice. Ms. Cobb practiced in Washington, D.C. before joining Ropes & Gray, where her practice included mass tort litigation, multi-district litigations, and additional commercial litigation in federal and state courts throughout the United States. Currently, Ms. Cobb concentrates on creating, monitoring, and implementing best practices and strategies for electronic discovery. Ms. Cobb works closely with Ropes & Gray s ediscovery attorneys and Litigation Technology professionals to analyze metrics, workflows and new technologies to identify and implement opportunities for improving quality and efficiency in ediscovery. 5

6 Andrew Szczech, Kroll Ontrack Andrew Szczech, Director of Legal Technologies Services, is responsible for the growth and delivery of Kroll Ontrack s legal technologies services in the EMEA region. These services include ediscovery, computer forensics and consulting which are provided in order to assist clients in multiple practice areas including dispute resolution and antitrust. Frequently, there is a need for solutions to address complex cross border data protection challenges. Andrew also manages the growth and development of global accounts throughout the EMEA region. Andrew has worked in IT for over 20 years, both inhouse and for solution providers. His main focus has always been to ensure clients are able to maximize the use of technology within their organizations. 6

7 Thomas Sely, Kroll Ontrack Thomas Sely is a Business Development Manager in France. He advises French clients on the management of electronic evidence and the use of legal technology in matters ranging from forensics investigations, compliance audits and French & EU competition regulatory investigations to litigation and dispute resolution. Thomas is regularly consulted on the practicalities surrounding the collection, management, processing, review and production of electronic evidence, particularly where issues of French data privacy and data protection are concerned. Thomas holds a DEA Droit des affaires and a Master in Business Administration from the University of Lyon. He is fluent in French and English. 7

8 Introduction 8

9 9

10 Legal Frameworks 10

11 Discussion Points Common vs. Civil Law Ediscovery Rules in Different Jurisdictions Data Protection Laws in Europe and the Extra-Territorial Reach of Regulators 11

12 Common vs. Civil Law Civil law Common law Mixed law Sharia law 12

13 Ediscovery Rules in Different Jurisdictions Main differences between US and UK:» Narrower scope of discovery allowed in the UK: UK CPR Rule 31.6: requires disclosure of documents on which the party relies or which affect the case» In the UK, there is the obligation to proactively produce clients relevant documents to opponents» Proportionality standards more defined in the UK 13

14 Ediscovery Rules in Different Jurisdictions Main differences between US and UK:» Broader scope of discovery allowed in the US: US FRCP 26(b)(1): any matter, not privileged, which is relevant to the subject matter in the pending action» In the US, lawyers must request opponents relevant documents» Proportionality standards less defined 14

15 Ediscovery Rules in Different Jurisdictions Ediscovery is a global phenomenon In EMEA and APAC, ediscovery is quickly evolving due to the number of US companies in the region and the need to produce information in US litigation Some countries have no formal discovery duties; however, a role for ediscovery still exists to support the review of company data in:» Investigations» Internal audits» M&A work 15

16 Data Protection Laws in Europe Complex data protection / privacy laws vary per country Clash with US discovery laws can lead to sanctions New EU Data Protection Regulation: the law is about to get stricter which may lead to higher fines and greater extra-territorial reach Legal and technology solutions help transfer data safely» How safe is the Safe Harbor?» Are there local solutions? 16

17 Do all countries have the same approach to privacy? What to do about the new EU Data Protection regulations? How do companies address these challenges? Do US discovery rules trump data privacy laws? What to do when faced with a case where data is outside of the US? Questions You May Have? 17

18 Data Protection Laws in Europe Why does data have to remain in France?» When overseas authorities order the disclosure of French data, it is getting harder to comply» Primary reasons: Blocking statute in penal law says you cannot send evidence out of country for legal matters in other jurisdictions without specific procedure French Secrecy Law: French Parliament wants to enact this to better protect French business trade secrecy against request of documents from foreign authorities» As data protection and business secrecy laws tighten up in France, it is important that clients have more control over their data 18

19 Cultural Considerations 19

20 Discussion Points What is it like to do business across the globe? How do employees consider themselves in different parts of the world? What are the differing attitudes toward privacy? Do cultural differences affect attitudes towards discovery? 20

21 Practical Experiences 21

22 Discussion Points Collecting data scattered in different countries Reviewing documents in multiple languages Complying with data protection and privacy laws restricting data transfer across borders Adopting a seamless approach to processing and review throughout different countries Dealing with clients with different ediscovery experience levels in in their countries Straddling different cost models 22

23 Collecting Data Scattered in Different Countries 23

24 Reviewing Documents in Multiple Languages 24

25 Complying with Data Protection and Privacy Laws Restricting Data Transfer Across Borders 25

26 Adopting a Seamless Approach to Processing and Review Throughout Different Countries 26

27 Dealing with Clients with Different Ediscovery Experience Levels in Their Countries 27

28 Straddling Different Cost Models 28

29 Questions 29

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