Why Being Global Matters: Cross-border Litigation on the Rise for 2016 and Beyond
Cross-border litigation is increasing at a rapid rate as companies expand globally and data multiplies exponentially. The United States will continue to be the largest region for discovery related expenditure, but by 2019, Europe will comprise almost 23% of the market, and Asia will have just over 7%, according to a recent survey by the International Data Corporation (IDC). This significant increase in electronic discovery abroad is driven in part by the factors below.
One of the driving factors for the surge in discovery overseas is the increase in government and regulatory matters. European companies have faced intense scrutiny as regulators continue to stamp out corruption, anti-competitive behavior, and breaches of trade sanctions across the globe. Under the Foreign Corrupt Practices Act (FCPA), large banks and engineering companies faced record fines and sanctions in 2015. Because of the industry oversight, scope of review, and the volume of documents requested, the FCPA and other similar matters will continue to dominate the e-discovery market growth moving forward.
Another key factor that has increased the rate of electronic discovery overseas is the acceptance of social media in the workplace. The volume of electronically stored information (ESI) is growing by 65-70% every year due to the use of social media and repositories such as smart phones and tablets. These social media platforms include Facebook, LinkedIn, Twitter, and Instagram. This creates a high demand for discovery solutions that can process this type of digital data in an efficient manner.
The growing demands for global discovery capabilities and the demise of safe harbor have given U.S. based discovery companies an opportunity to expand their international footprint. In January, there was a spike in merger and investment activity with respect to the international discovery market. Companies are pairing off at a steady rate in an effort to gain or retain market share.
With the consolidation of discovery companies in the global marketplace, corporations and law firms need to find a partner that can deliver quality results in a timely manner. In evaluating a provider for an international project, the most progressive companies look to the following questions when deciding on the right vendor:
Security: Global corporations need a provider that will adhere to the protocols deemed appropriate for the protection and security of their data. This could range from physical security to chain of custody procedures, and penetration testing.
Scope of services offered: Look for a company that can deliver all the services needed through the discovery lifecycle. These providers can offer more competitive and flexible pricing and assume responsibility for every aspect of the work, eliminating hand-offs and cross-vendor coordination.
Experience: Due to the complexities of cross-border litigation and regulatory matters, it is important to choose a company that is familiar with the different legal requirements from country to country and has worked in multiple time zones and languages.
Technology: Technology-assisted review is the buzz these days. For some cross-border cases, this may be a good fit but for others, a different approach may be needed. It is best to partner with a company that is flexible and can use different approaches to help meet deadlines, reduce costs and maintain accuracy.
Bespoke engagements: Choose a company that offers flexible pricing models to meet your international needs. This could range from flat rate pricing, managed service agreements, or subscription models. At the end of the day, corporations are looking for price transparency and the ability to gain insight into where money is being spent through the discovery process.
Processing capabilities: When it comes to complex global litigation, file types are never simple. International matters involve multiple languages, with multiple formats and file types. Corporations need to choose a provider who can handle cloud-based data, trading data, encrypted data, audio data, and mobile data with efficiency and ease.
Project management team: Last but certainly not least, corporations need to choose a discovery company that has a strong, long-lasting project management team. When picking a provider, inquire as to how many PMs are on staff and what the turnover rate has been in the last couple of years. Also, take a look at the expertise and qualifications these managers hold. This may not seem important at the outset, but it becomes critical as expertise is needed as the case becomes more complex. For international cases, it’s also important to make sure that PMs are coordinating seamlessly across multiple time zones and escalating matters at the appropriate time. Any savvy company knows that project managers play a critical role in the discovery partnership and that they are the glue that holds all the pieces together.
Given the proliferation of data and the increase in cross-border litigation, choosing the right international discovery partner will be mission critical in 2016.