What is eDiscovery?Explanation of the necessity and risks of countermeasures
2023/ 6/ 9
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Japanese companies doing business globally must prepare for the risk of US lawsuits.In the United States, where lawsuits occur frequently, it is not someone else's problem.We will introduce the legal system and litigation flow that are different from Japan, as well as the preparation and specific procedures for litigation in the United States.
Factors in U.S. lawsuits that put Japanese companies at risk
The first thing I would like to know is the possibility and risk of Japanese companies being sued in the United States, and the factors involved.Some of the major factors leading to litigation in the United States include:
Class action lawsuits are filed jointly by Japanese companies in the event of defects, accidents, or defects in products sold in the U.S. market."Suspicion of violating international cartels," in which legal sanctions are imposed on acts that violate market monopoly and lawful competition principles.In addition, "intellectual property infringement lawsuits" that claim that technologies and products have infringed intellectual property rights such as patents, trademarks, and copyrights in the United States, and cases that are alleged to have violated environmental pollution or environmental regulations. There is also the possibility that environmental protection groups and local residents will file “environmental lawsuits” in the near future.
Differences between Japanese and U.S. Litigation and Flow of U.S. Litigation
US litigation is very different from Japan.While introducing the series of civil lawsuits in the United States, I will explain the differences between Japan and the United States.
Differences between Japanese and U.S. Civil Litigation Systems
There are some important differences between the civil procedure systems of Japan and the United States.The big difference is
- “Discovery” system
- jury system
- Damages
- Class action
Such as it will be mentioned.
What is unavoidable in US litigation is the procedure related to the submission of evidence called “discovery”.In the United States, it starts with requesting disclosure of evidence from the other party and obtaining evidence from the other party and third parties.In Japan's civil litigation system, it is common for judges to make all decisions, but in the United States, there is a "jury system" in which juries decide whether or not compensation is awarded.
Litigation procedures in the United States tend to be complicated and time-consuming, and tend to be prolonged. Regarding the amount of damages, in contrast to relatively modest civil lawsuits in Japan, the amount of damages in the United States is often huge. It's a feature.As mentioned above, it is not uncommon for a class action lawsuit to be filed when a large number of victims suffer common damage.
Flow of U.S. Civil Litigation
The flow of civil litigation in the United States may vary depending on state and federal law, but here are some common examples.
A civil lawsuit begins when the victim (plaintiff) files a lawsuit with the court.The court notifies the defendant of the complaint.Defendant responds with counterargument.From here, the parties' litigation preparations begin.Disclosure and collection of evidence, pick-up of witnesses, etc. are carried out to prepare for the trial.If an agreement is reached between the parties during the litigation, a settlement will be reached, but if no settlement is reached, a trial will be held, and after the trial, the judge will make a decision.
What is “Discovery,” a legal procedure unique to the United States?
There is a unique procedure called “discovery” in US lawsuits.This is a procedure that is considered important in the United States, but it is difficult to deal with, and it is a major issue for Japanese companies that are at risk of being sued in the United States.
Discovery is a pretrial discovery procedure
"Discovery" is the procedure for exchanging evidence and information in US litigation.Disclose relevant information or materials to the other party, request disclosure, take depositions, etc.
Provide the other party with documents and records that may be used as evidence necessary for the trial.Discovery is a key element in fair and efficient litigation by disclosing evidence to each other and seeking the truth.
It takes a huge amount of time and cost, and there is a possibility of huge compensation due to inadequate measures
Discovery is said to be very costly, sometimes accounting for a majority of attorney fees.If the case was lost due to lack of preparation, there was a possibility that the company would have to pay a huge amount of compensation, which would have a serious impact on the company's business.Therefore, discovery is an important step, and it is said to be an important point that determines the outcome of US lawsuits.
Electronic data discovery request "e-discovery"
As many documents are now created and stored as electronic data, it has become necessary to treat electronic data as evidence in lawsuits.The procedures and processes related to electronic data discovery and claims are called "e-discovery." In 2006, the U.S. Federal Rules of Civil Procedure were amended to establish electronic data discovery called "e-discovery." This has resulted in a huge amount of electronic data, and the workload and costs are increasing.
Electronic data includes emails, text files, various internal documents, chat messages, spreadsheet software, image data, website content, and all other data that has been agreed to be submitted.Protect the data to be submitted so that it is not falsified or destroyed.Collect the data that you think is necessary and convert it into an agreed format.Review and analysis will be required to find the texts agreed for submission.
[Related article] What is eDiscovery?Explanation of the necessity and risks of countermeasures
Workflow for eDiscovery "EDRM"
EDRM is the global standard workflow for understanding and managing the e-discovery process. EDRM is an abbreviation for "The Electronic Discovery Reference Model".Next, let's delve into "EDRM".
What is EDRM
"EDRM" is a commonly used workflow in the United States that describes common steps and tasks in conducting eDiscovery.The specific work varies depending on the project, but it is an important framework for conducting e-discovery accurately and efficiently.Although it has become a global standard work index, it requires a huge amount of knowledge and processes.
EDRM process and work
EDRM, which covers a wide range of tasks from IT systems to legal systems, starts with "information control."Whether the data is classified and stored in an appropriate place and whether it is controlled or not has a great impact on the actual e-discovery.
Identify the scope of data subject to e-discovery from among the managed information and collect specific data while preserving it so that it is not discarded.Collected data is filtered to remove duplicate data.After removing irrelevant data and narrowing down to data that can be disclosed, the attorney in charge will finally decide whether to disclose it or not, and submit it in the specified format.
E-discovery research and preparation costs enormous costs
As you can see from this process, eDiscovery involves a huge amount of work and requires specialized knowledge.Including it from the preparatory stage will cost a lot of money, but it is an important step that cannot be avoided in US litigation.
[Related article] What is EDRM (Electronic Disclosure Reference Model)?Introducing basic knowledge and work processes
Preparing for U.S. Litigation Risk is Important
At this stage, even for Japanese companies that are unlikely to be sued in the United States, it is important to be prepared so that they do not panic in the event of an emergency.Here are some tips for avoiding the risk of US lawsuits.
Discovery-aware email management
The key to preparing for litigation risk is to be conscious of discovery.E-mails, which are especially important for e-discovery, have a deep-rooted corporate culture in Japan where they are left undeleted for a long period of time.Processing a large volume of e-mails can result in high legal costs or the presentation of evidence in favor of the other party.Nonetheless, if you delete an e-mail that can be used as evidence after the obligation to preserve the document has arisen, severe sanctions will be imposed as a violation, so it is necessary to be prepared to thoroughly manage e-mails on a daily basis.
Build relationships with lawyers familiar with US litigation
The quality of lawyers has a great impact on the outcome of trials, not just in US lawsuits.We would like to secure a defense team that accurately understands the differences between the Japanese and US legal systems and has the know-how.In addition to preparing for risks, it is necessary to build a relationship that allows prompt support when a complaint arrives.This is because if the start of the lawsuit is delayed, it is easy to fall into a disadvantageous situation.
Consult with a service vendor with e-discovery know-how in advance
In order to reduce the risk in the United States, where lawsuits frequently occur, it is essential to prepare in advance, such as by simulating the possibility of occurrence, before the complaint arrives.In addition to the lack of knowledge about discovery among Japanese companies compared to US companies, unfamiliarity with US lawsuits can lead to delays in initial speed.In normal times, it would be wise to consult with a service vendor that has a suitable solution in place.
For U.S. litigation measures, FRONTEO has extensive experience in e-discovery using AI
The best way to prepare for litigation in the US is to use a vendor with eDiscovery know-how. "FRONTEO" is a pioneer of e-discovery in Asia with more than 8,500 discoveries. We have developed the AI engine "KIBIT" in-house and provide one-stop services from data identification to review and creation, reducing the cost and time required for e-discovery and supporting many companies. "KIBIT" operates with high precision and light calculation processing, so it can be quickly implemented, and can be flexibly customized for each company's unique system and special data.
If you can respond quickly and accurately in e-discovery, which is the heart of US litigation, you can minimize the damage to your company.It can be said that preparing for lawsuits is a necessary up-front investment in order not to fall into a huge amount of damages if it becomes disadvantageous to your company.
In today's world of globalization, litigation in the United States is not someone else's problem, even for Japanese companies. Why don't you start preparing for risks by using the support service of "FRONTEO"?
