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Charles Hollander KC led an informative panel discussion on the challenges that may arise in cross-border disputes when dealing with multi-jurisdictional disclosure. There was a practical focus on how to approach such challenges as well as a review of potentially helpful technology.

The insights from the panel clearly highlight that undertaking multi-jurisdictional disclosure brings its own distinct challenges, being both the disclosure itself and managing a client’s expectation and understanding. It will be key to identify which challenges arise and for them to be factored into the disclosure phase of any litigation. The panel members clear experience in this area provided valuable insights.

Key elements discussed were:

Client relationship—it will be key to explain the client’s disclosure obligations; these may be very different from those in their own jurisdiction. Ensure the relevant people are included within the discussions, for example those involved with document retention policies or IT staff

Planning and timing—there are many factors to take into account and a lot of additional extra considerations when compared to domestic disclosure and therefore it is essential to ensure that there is clear understanding of the different challenges that will be faced, how they can be addressed and what impact this will have on timing of the disclosure exercise. Issues to consider include differences across jurisdictions in relation to document retention and destruction policies, the control of data, how data can be accessed and issues surrounding confidentiality and privilege.

Location of the documents—at an early stage of the litigation it will be essential to identify the different jurisdictions in which documents are held and to obtain local law advice as to any potential challenges that may arise in undertaking the disclosure exercise and ensuring compliance with disclosure obligations for example whether data can be transferred out of the jurisdiction. Identifying where documents may be found is not always an easy task and with the evolving nature of technology there are many ways in which disclosable information is also stored.  Gone are the days of hard copy documents, and, as the panel advised, it is essential to consider where such information may now be stored eg off site storage, mobile apps, employees personal devices.  Also consider, that depending on the time period over which documents are being sought, the way in which such information is stored may have changed.

Getting hold of documents—the standard process is to use the letters of request mechanism.  However, as noted by the panel, this will can be particularly cumbersome. The panel emphasised that often there will be a need to be creative in how documents can be obtained. In seeking to do this, look to the local law and any potential mechanisms available to obtain documents.  Examples given were making a 1782 application in the US (available to parties or interested persons) or commencing parallel proceedings in the relevant jurisdiction to obtain documents (although consider whether any documents obtained can then be made available within the UK)

Confidentiality and privilege—this is an important issue and local law advice should be obtained and discussed with your clients.  The panel highlighted the need to bear in mind that many jurisdictions do not have the concept of privilege and a key take away, when dealing with disclosure in multiple jurisdictions, is to look at applying the most restrictive privilege rules. Another consideration is whether privilege will be applied to lawyers who provide the client with advice during the case but are not advocates. The complexity in this area takes on another dimension when considered in relation to regulatory investigations. The panel emphasised the complexity of this area and the need for understanding the co-operation and information sharing agreements between investigating agencies and regulators.  Different jurisdictions will take different approaches to the issue of privilege. For example, while in the UK a limited waiver arrangement can be entered into, this is in sharp contrast to other jurisdictions. It is essential to understand what will constitute waiver of privilege in each of the relevant jurisdictions when considering for example verbal disclosure or interview notes.

Technology—this is a continually evolving area. When dealing with cross-border disclosure it has the capacity to provide much needed assistance with examples being given of assistance  with scoping the disclosure exercise, data mapping, combining all forms of data into one area to enable singular searching, translation of documents (although consider whether it will provide the same level of results for each of the different languages to be translated) or the deduplication of documents across borders (particularly important in cases in which the local law refuses to allow documents to leave the jurisdiction)

This was an insightful panel discussion, a lot of practical insight and food for thought alongside some amusing anecdotes from the panel members themselves.