Important eDiscovery Considerations for Japanese Companies -Part 1

Important eDiscovery Considerations for Japanese Companies - Part 1

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Organizations in Japan, and generally across Asia Pacific (APAC), have experienced a sharp increase in eDiscovery related work over the past several years due to a rise in cross-border litigations and investigations. It is more critical now than ever before to take stock of important considerations when evaluating and partnering with service providers that will guide and support your eDiscovery needs.

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This blog will cover four critical factors that relate to cross-border matters that should always be considered when selecting a proficient eDiscovery service provider that will have the appropriate solutions and experience to provide the required guidance and assistance.

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1. Local Skilled Resources

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No matter the jurisdiction in which discovery work occurs, in most instances, it makes is prudent to have a partner or local resource that has in-country experience and knowledge to ensure a thorough and defensible process. Retaining the services of local discovery specialists with native speakers who can suggest potential keywords for searches, review data on-site and avoid the need to transfer data, as well as provide advice regarding cultural and political nuances, is a key part of initial project planning.

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The various phases involved in discovery typically dictate the points at which you may want to involve local resources for support; however, having a domestically based partner with extensive experience supporting cross border work will undoubtedly facilitate the development and execution of required workflows, and assist in realizing substantial cost savings and workflow efficiencies.

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Local counsel or local service providers experienced in eDiscovery collections also provide great value as conduits to US-based attorneys by acting as a mitigating party, explaining sovereignty issues, integrating paper and data into one database, and collecting data before spoliation occurs. One thing to always keep in mind is that judges and regulators are not terribly sympathetic to the differences between APAC and US customs and laws as they relate to electronically stored information (“ESI”), so developing a meaningful partnership with a local eDiscovery service provider is crucial.

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2. Awareness of Data Privacy Laws & Regulations

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Managing data privacy laws and confidentiality concerns is the single biggest challenge faced by global law firms and eDiscovery providers that deliver support to APAC organizations. Additionally, in recent years, there has been an uptick in new (comprehensive) data protection laws in the APAC that has introduced challenges with maintaining cross-border compliance.

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Most APAC countries have sophisticated data privacy regimes that prohibit the transfer of documents that contain personally identifiable information (PII) without consent. For example, under Japan’s privacy and data protection law, the Act on the Protection of Personal Information (“APPI”), data users cannot transfer personal data outside Japan without obtaining informed consent from the individual, or without establishing a personal information protection system with the receiving party in accordance with the APPI. Some countries have even more restrictive laws that govern confidential businessinformation and state secrets. In China, for example, parties attempting discovery should expect wide application of these laws to commercial documents such as meeting minutes, financial statements, and production forecasts.

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To address this requirement, many global eDiscovery providers have recently invested heavily in onshore hosting capabilities within APAC jurisdictions. This investment makes sense as concerns regarding data sovereignty are not expected to subside despite a clear, recent consensus among APAC nations that greater consistency in regional data protection frameworks is sorely needed. As a result, for the foreseeable future, the landscape pertaining to data privacy laws and regulations is expected to remain complex as each country continues to act independently in passing new legislation that address current domestic needs.

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3. CJK Language Expertise

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Most document review tools nowadays are able to support complex languages, such as Chinese, Japanese, and Korean (“CJK”), but it remains essential to gain a clear understanding of associated processes, such as indexing and searching, when managing cross-border matters expected to contain CJK languages.

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Indexing is a process that inventories the total content of a file and builds a searchable index, a digital table that serves, conceptually, like the index in a book. Search indexes function as tools designed to facilitate and expedite the retrieval of information. However, before searches can occur, document content must be tokenized into searchable elements.

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Asian languages are fundamentally more difficult to index than most other languages because their words are not consistently separated by spaces. Chinese and Japanese use no spaces between words, and Korean uses some spaces, but not between every word, and inconsistently depending on the writer. Early efforts at CJK tokenization often indexed every character in the dataset, which resulted in an overabundance of search hits that were less responsive to the intended search. More effective methods at producing indexable units in Asian languages are N‑gram and tokenization, although results from these approaches have varying degrees of search precision. In a future post, we will share FRONTEO’s unique technology and preferred approach.

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Given that technology is constantly evolving and improving, we recommend obtaining a good understanding of the handling, indexing and searching processes – specifically for CJK languages – that your eDiscovery provider will employ, and that you also inquire about analytics and AI-based tools for CJK languages that may help your legal teams gather additional insights about your data.

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4. Analytics & Technology Assisted Solutions Built for CJK Language Nuances

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Recognizing that the construction of words in CJK languages fundamentally differs from Latin and other European languages, the development of advanced technologies for use in cross-border matters should contain algorithms that leverage the use of N-gram or tokenization methodologies to identify relevant material. There are many good TAR and analytics solutions available in the market that can assist with increasing efficiencies and reducing associated discovery costs. However, not all solutions are designed upon initial release to deliver new and improved features that accommodate the nuances of CJK languages, so it is always a good idea to inquire accordingly. For reference purposes, FRONTEO has released multiple AI-based algorithms since KIBIT Automator’s debut in 2012, each designed to process different data types, and all optimized to support CJK and Latin languages upon version releases. In line with FRONTEO’s commitment to improve cutting-edge technology and develop innovative solutions, FRONTEO recently released a new algorithm for use in KIBIT Automator that contains newly developed methods for handling morphemes (i.e., small linguistic units), improved classification algorithms to suppress overlearning, and a fine-tuning of existing features for cohesive operation.

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In short, your role may not require deep expertise in the foregoing areas, but your project almost certainly will. So, if you have cross-border matters likely to involve CJK languages, we strongly suggest working with a team that has native language speakers, a local presence, and/or ESI experts in-country. In addition, we also recommend asking service providers that support cross-border matters to share a clear explanation of workflows, processes and approaches, as well as relevant experiences in handling data in compliance with local data privacy laws

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Sources:

1. Amended Japanese Privacy Law Creates New Categories of Regulated Personal Information and Cross-Border Transfer Requirements
   https://www.jdsupra.com/legalnews/amended-japanese-privacy-law-creates7847421/#:~:text=Beginning%20April%202022%2C%20businesses%20within,receiving%20the%20personal%20in%20the
2. dtSearch® and Rosette® Full Featured International Search
   https://www.dtsearch.com/dtSearchBasisWhitePaper.pdf

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日本やAPACの組織におけるクロスボーダー案件でeDiscoveryサービスプロバイダーを評価・選定する際、現地の優秀なリソース/データプライバシーに関する法規制の認識/日中韓の言語専門知識/日中韓の言語ニュアンスに合わせて構築された分析＆技術支援ソリューションの４つの要素を考慮することがとても重要です。FRONTEOは英語、中国語、日本語、韓国語をサポートするよう最適化された「KIBIT Automator」を用いて皆様をサポートします。

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