Asia Disputes Academy

Transcription

1 Asia Disputes Academy Electronic document discovery how it is relevant to you Tim Mak, Jonathan Wong (Freshfields) and Donald Chan (Control Risks) 18 September 2014

2 Introduction Buzzwords Big Data, e-discovery, analytics etc. What does it all mean though? The reality is: 1

3 We have moved from this: 2

4 To this: 3

5 Why Analytics Matter 4

6 Why Analytics Matter

7 Why does e-discovery matter to you? The world is becoming more regulated, and arbitration / litigation is become more complex and document-intensive The nature of evidence is changing: - Increasingly, almost all documents are in soft copy. - Potentially millions of documents to produce / disclose Typical recent cases we have worked on: - Targeted review of s of an entire Company in China as part of a wide-reaching ABC investigation - Assisting financial institutions with internal and regulator-driven investigations involving millions of pages of s / chat logs 6

8 Why does e-discovery matter to you? How about litigation / arbitration? - Identifying what evidence you have - Agreeing discovery / disclosure with the other parties - Reviewing documents disclosed by the other parties Hong Kong Judiciary e-discovery pilot scheme - Came into effect 1 September Requires parties to engage / consult on e-discovery and try to reach agreement on scope of discovery - Applies to cases in the Commercial List - Amounts in excess of HK$8m and at least 10,000 documents 7

9 Practical challenges Huge volumes: - How to manage / organise - Needle in a haystack? Where is the evidence? - and data servers - Preservation of evidence - Hard vs soft copies Agreeing on disclosure: - Tech-speak vs traditional lawyers - New technologies, old rules 8

10 Donald Chan, Control Risks DOCUMENT REVIEW PLATFORM KEY CONCEPTS 9

11 Introduction Control Risks is a global, independent risk consultancy specialising in political, integrity and security risk Since 1975, we have worked in over 130 countries for more than 5,000 clients Trusted advisor to more than 75% of the Fortune offices on 5 continents Ethical and Independent We enable our clients to succeed in complex, hostile environments

12 Practice Areas Global Risk Analysis Political, Regulatory & Operational Risk Assessments Pre-Transaction Due Diligence Due diligence Screening Business intelligence Political Risk Integrity Risk Security Risk Post-Transaction Compliance Issues Fraud Prevention Investigations Anti-Counterfeiting IT and Financial Forensics Whistle Blowing Services Crisis & Security Response & Problem Solving Security design, audits & reviews Crisis management & business continuity Embedded security services & protection Complex problem solving 11

13 House in order! Map out details! Go get it! Look! FOCUS IS HERE Fire / disclose! 12

14 Preservation and Collection The data will be sourced depending on what is needed, and who is asking for it. If it is an internal investigation, the company may have their IT staff collect it themselves. This is fine if - IT staff are not part of the investigation - They have the technical knowledge Many times, a third party like us are asked to assist with data mapping and doing the collection In some instances, regulators themselves will do the collection 13

15 Computer Forensic Investigation Starts with forensic image of computer Recover deleted items Search for items Report on activities, connected devices, folder structure, targeted files or file types, suspicious programs 14

16 Key Functionalities of a Document Review Platform Consolidate data from various sources all in one place Quick to get reviewers started Remove duplicate documents (de-duplication) Extract metadata Optical Character Recognition (OCR) Indexing Imaging Searching Hosted platform allows worldwide access, collaborative platform Ease of management and reporting Ease of review and production 15

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20 Assignment Management / Progress Update 19

21 Assignment Reporting 20

22 Additional Capabilities Multiple security groups for various review entities Language Identification Work Product Tags, Folders, Comments Built in on demand translation Redactions View Document Family Near Duplicate Analysis Thread Mapping Communication Frequency Concept Clustering 21

23 Work Product Tags, Folders, Comments

24 On the Fly Translation

25 On the Fly Translation

26 Redaction

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30 Communication Diagram

31 Concept Clustering

32 Global Data Centers 31

33 Security Features Physical security to data centers Secured cabinets Onsite security Alarms Camera coverage Authorized personnel access Technical security to application Transport Authentication Geography Access Permission 32

34 CASE STUDY 33

35 The Facts You are Dragon Electric Limited (DEL) - a corporation in Hong Kong - internationally renowned producer of electronics, mobile consumer products 5 years ago, you established a JV with Guangdong Electronics Company (GEC), a large China-based manufacturing company with an excellent distribution network in mainland China The JV has been a great success in the last 5 years However, in the last few months, troubles began 34

36 The JV DEL initially supplied all IP and technical expertise to the JV Most of the staff of the JVCo were recommended by GEC, including the CEO of JVCo, Mr Henry Wong You have recently heard rumours that Henry Wong has established his own company in Hong Kong and Guangzhou, HW Enterprises, which intends to manufacture a tablet PC which is very similar to JVCo s top seller, the Dragon 6 35

37 The Evidence Where is the Evidence: - JV Co has s of Henry Wong and senior managers of JVCo stored on the Company s Hong Kong server - Desktops in the JVCo s Hong Kong and Guangzhou offices - Company laptops issued to Henry Wong and other staff of JVCo - Company internal chat software records - Limited telephone recordings - Access card records - Hard copy folders Freshfields contacts Control Risks to help with evidence collection and preservation 36

38 The Evidence 12 custodians, including the 4 senior managers who have now left, their key team members and personal assistants 500GB of data Over 500,000 s and documents 30 leverarch folders of hard copy records 37

39 Analysing the evidence Forensic recovery Analytics - Concept clustering - Keywords - Predictive coding - Time periods Review methodology 38

40 1 week later Hot docs from review to date: - Concept clustering and forensic recovery has turned up some strange phrases, including a Project New which Will is not familiar with - Most s are inconclusive, refer to some meetings but not content of meetings - Meeting attendees appear to be the four employees who have left the Company, and one additional employee, a senior technician named Susan Sanderson, who is still with the Company - One states Better not to discuss this on Co. s, me at Hwong1971@gmail.com instead Review team pick up personal s of the four protagonists Keyword searches run: - Personal addresses - Project New run on chat records Susan Sanderson s s and chat records pulled from the server for review 39

41 3 weeks later 3 weeks later: - Initial review is largely complete and DEL believes it has sufficient evidence for JVCo to commence a derivative action lawsuit in Hong Kong - JVCo serves its statement of claim on Henry Wong, HW Enterprises and GEC, amongst others 40

42 Agreeing scope of discovery 3 months pass: - Parties exchange pleadings, - GEC counterclaims, stating that DEL did not perform its obligations under the JV agreement and that one year ago, DEL engaged in discussions with another company in Hong Kong re. setting up a separate JV, breaching its obligations under the JV agreement Negotiations on discovery - Due to large volume of documents, agreed that parties will produce documents which are responsive to an agreed list of search terms for specific time period - In particular, GEC has requested for wide-ranging discovery in relation to its allegation that DEL engaged with discussions with another company in Hong Kong re. setting up a separate JV 41

43 Discovery / disclosure Review of documents for disclosure: - Legal privilege - Relevance Production: - Format - Timing - Co-ordinating with GEC s / HW s service provider 42

44 Settlement After disclosure and close of pleadings, GEC / HW realise that DEL / JVCo do indeed have strong evidence and a good chance of success, and that their evidence seems to be comparatively weak GEC / HW approach DEL to negotiate a settlement 43

45 Questions 44