Virtually unheard of 20 years ago, increasing data volumes and ever-changing technologies have resulted in e-discovery and information governance exploding onto the legal scene. Corporations face a wide array of overlapping and competing e-discovery and information governance laws and regulations impacting the use, retention and disposition of electronically stored information (ESI). This second edition of The e-Discovery and Information Governance Law Review provides a general overview of e-discovery and information governance obligations in key jurisdictions around the world.
E-discovery seeks the disclosure of ESI to opposing parties, regulators, governing authorities and judiciaries. It is a complex issue that requires a strategic and thoughtful response. Although e-discovery is common in some countries, such as the United States, it remains a foreign concept – sometimes unheard of – in other jurisdictions throughout the world.
In contrast to disclosure obligations, many jurisdictions seek to protect their citizens from cross-border data flows and the disclosure of information abroad. Data protection regulations continue to evolve in those jurisdictions that have them, and an increasing number of jurisdictions that did not previously have data protection regulations are implementing them. Thus, global corporations may face unique challenges when international data is sought in e-discovery: failure to comply with e-discovery obligations could result in sanctions against an organisation, while the corresponding disclosure of ESI and failure to comply with data protection laws could result in the imposition of fines or criminal prosecution.
Recent global events have further complicated data privacy. The covid-19 pandemic is causing many jurisdictions to amend their data privacy laws in pursuit of the common good. However, whether jurisdictions will extend such laws following the pandemic's end and what will happen to data collected during the pandemic has yet to be determined.
Information governance is likewise an intricate issue, involving the organisation, maintenance, use and disposition of information in light of business goals, as well as complex legal and regulatory obligations. Effective information governance provides an organisation with an opportunity to control ever-expanding data volumes as well as newer technologies and forms of ESI. It also provides corporations with knowledge and insight into their own data assets so that they know what information they have, where it is kept and how it is being used. Information governance further includes having processes in place for handling sensitive information that may be governed by various data protection laws or other regulations. With more employees working remotely throughout the world, the recent covid-19 pandemic has caused many businesses to reassess their information governance policies.
E-discovery and information governance intersect whenever ESI is implicated in a litigation or regulatory investigation. A critical element of any information governance programme is a defensible, repeatable e-discovery plan that includes processes and procedures for handling ESI in the face of an anticipated litigation or government investigation implicating e-discovery. Because an effective programme of this kind keeps only those materials for which an organisation has a business need or legal obligation, data volumes are limited, along with the corresponding risks and costs associated with e-discovery.
While this book provides a basic overview of issues and highlights best practices in each jurisdiction covered, given the complex and ever-evolving nature of e-discovery and information governance laws, we strongly encourage you to reach out to counsel for assistance with any issues you may encounter.
We would like to thank all the contributors for generously lending their time and expertise to help create this second edition of The e-Discovery and Information Governance Law Review. We would also like to thank the Law Reviews team, without whom this work would not have been possible.
Jennifer Mott Williams
Morgan, Lewis & Bockius LLP