The e-Discovery and Information Governance Law Review: Japan
The Japanese legal system is based on civil law, and courts render decisions based on the primacy of codified law. As opposed to common law systems, such as that found in the United States, there is less emphasis on judicial precedents that judges use as bases to rule in subsequent cases. Japan has a unified court system, of which the highest level is the Supreme Court. There are no separate and discrete state court systems. There are generally three tiers of courts, with actions first filed in a court of first instance, followed by an intermediate appeal to one of eight high courts, followed by an appeal to the Supreme Court.
There is no discovery procedure under Japanese civil procedure laws. Parties are required to obtain evidence to establish or disprove the merits of a plaintiff's claim of their own accord. Each party is therefore required to evaluate and prepare its claims based on the evidence each has in its possession. This differs significantly from US civil procedure rules, which call for lengthy discovery periods where the parties are able to seek and obtain information and evidence related to the claims at issue from the opposing party. As there is no discovery procedure in Japan, there is no electronic discovery procedure either. To collect electronically stored information (ESI) under the control of the opposing party or a third party, a party must utilise evidence collection methods permitted under the Code of Civil Procedure (see Section IV).
Year in review
Although the legal system does not provide for the collection or disclosure of ESI, the government has been discussing ways to develop the use of technology in court procedures. The courts do not allow parties to file submissions online; rather, all documents are submitted in hard copy. However, in 2017, the government established a committee to evaluate how courts can update the technological processes of their civil law procedures. In March 2018, the committee issued a report with its recommendations regarding how to integrate electronic tools into the civil court process. The report focuses on three improvements:
- e-filing: filing of complaints and arguments electronically, rather than solely as hard copy;
- e-court: using web conference systems to enable the parties to participate in meetings with courts over the internet; and
- e-case management: accessing court submissions such as complaints, arguments and evidence over the internet.
To implement the systems listed above, the committee is considering a three-phase implementation process:
- phase 1: commencement of the operation of a web conference system and videoconferencing, which will be possible under the current laws without any amendments. These changes can be implemented relatively quickly by acquiring new equipment, such as web conference systems. Several courts began utilising the web conference system for part of their civil procedures from February 2020;
- phase 2: revisions to the relevant laws and regulations, which will allow other portions of the recommendations to be implemented; and
- phase 3: construction of remaining systems and receipt of user feedback, including from those who have experienced issues with IT systems.
Control and preservation
As mentioned in Section I, there is no discovery process in Japan. In general, parties do not have any duty to preserve ESI under the Code of Civil Procedure, as each party is required to obtain relevant evidence on its own. Because there is no duty to preserve, there are no sanctions for failure to do so. However, by utilising the methods explained in Section IV, the parties will be able to obtain documents from the opposing party.
Requests and scope
If a party wants to obtain evidence from the opposing party or a third party, it must try to utilise the collection methods permitted under the Code of Civil Procedure, as set forth below.
i Preservation of evidence
Preservation of evidence is a legal proceeding to examine and preserve evidence that might become impossible or difficult to examine by the time the actual hearing is held. It is possible to preserve evidence before a lawsuit is filed, and any kind of evidence, including electronic data, can be subject to this procedure. Parties must provide written reasons for why they need to preserve the evidence and why the evidence needs to be examined when the actual hearing is going to be held.
ii Petition for an order to submit a document
A party may file a petition with the court to order the opposing party or a third party to submit a document, explaining the necessity of the petition. The party must also describe the following in the petition:
- an indication of the document;
- the purport of the document;
- the holder of the document;
- the facts to be proven by the document; and
- the grounds for the obligation to submit the document.
If a court finds that there are legitimate grounds to grant a petition, it will issue the order. In some past cases, courts have determined that documents should be disclosed in electronic form and have accordingly ordered the document holder to disclose the ESI itself.
Review and production
The Code of Civil Procedure does not have any rules regarding the use of advanced analytical tools to facilitate analysis of produced materials. However, in situations where parties have the opportunity to analyse ESI on their own, these tools are popular.
There is no attorney–client privilege or work-product doctrine protecting the confidentiality of certain documents. However, in the competition law area there has been some discussion on introducing attorney–client privilege in relation to investigations by the Japan Fair Trade Commission. The Cabinet recently approved this through the amendment of regulations and drafting of new guidelines. This is limited to the competition law area, but nonetheless represents a large step forward for the legal system.
The Act on the Protection of Personal Information (APPI), which was introduced in 2003, regulates the protection of personally identifiable information. Amendments were introduced to the APPI in September 2015, which were fully implemented on 30 May 2017. The APPI requires companies to obtain consent to process personal data, unless any of the exceptions permitted under the law are applicable.
When parties plan to provide documents or ESI containing personal data to the court, the APPI will apply. Under the APPI, parties are generally prohibited from providing personal data to the court without consent; however, it allows the provision of personal data without consent if the 'personal data is necessary for the protection of the life, body, or property of an individual and if it is difficult to obtain the consent of the person'. A party will be able to provide personal data to the court if this exception applies.
In addition, there are cases when a company is asked by the court of a foreign country, or by the parties to foreign litigation themselves, to produce documents or data that contains personal information. Under the APPI, if personal data is to be transferred to third parties in a country outside Japan, a requirement is imposed to obtain the prior consent of the relevant individuals. If the company does not receive consent, which is normally the case, it should consider whether an exception to the rule applies.
Outlook and conclusions
As mentioned in Section I, there is no discovery process in Japan, and parties are required to obtain evidence on their own to establish or disprove the merits of the plaintiff's claim. There is currently little to no discussion regarding changes to this basic structure. It is very unlikely that a discovery process similar to that of the United States will be introduced in the near future.
However, because of the importance of ESI in terms of economics and business transactions, it is becoming increasingly important to have a system that allows parties to effectively collect and submit ESI. As mentioned in Section II, the government has been discussing technological updates to civil law procedures, which should be closely monitored.
1 Kentaro Toda is a partner at TMI Associates.