On Feb. 17, the court presiding over Pyrrho Investments and MWB Business Exchange v. MWB Property and others approved predictive coding in discovery, which was requested by both parties in the case. Of course, predictive coding has gained in popularity in U.S. courts since 2012's Da Silva Moore decision, so perhaps the decision shouldn't come as a shock.
Except, of course, the decision wasn't handed down by a U.S. court at all. Master Matthews of English High Court made the ruling, allowing predictive coding in a UK court for the first time. Outside of the U.S., only Ireland had previously allowed predictive coding in e-discovery.
This ruling is a pretty big deal, even if America-based counsel didn't take a second glance at it at first. "Predictive coding and technology assisted review have become so commonplace that we forget just how revolutionary this is," says David Horrigan, e-discovery counsel and legal content director at kCura. "When Da Silva Moore was handed down in 2012, it was a pretty earth-shattering event. ... The idea that you would not look at every document was a fundamental change."
But historically, e-discovery concepts have largely been confined to the ultra-litigious American legal system. This, however, is starting to change.
"E-discovery is often thought of as this crazy exercise those crazy Americans enjoy. Much of the world thinks we're nuts on how much discovery we allow in civil litigation," Horrigan says. "But Ireland and now the United Kingdom jumping on board and approving TAR really sets the stage and exemplifies that e-discovery isn't just for Americans anymore."
It's safe to say that the legislators are paying attention—look at the current hubbub over data transfer. It's also safe to say that law firms and corporate legal departments are paying attention—one glance at the growth of cross-border litigation produces a sweat. And e-discovery vendors—well, they're expanding abroad and acquiring foreign services and data centers like never before.
But awareness doesn't mean a flawless system, and there are numerous unique obstacles before seamless discovery can occur, both for e-discovery vendors, and the firms and legal departments they work with. The e-discovery market is not yet fully developed outside of the U.S., laying pitfalls for eager companies, firms and e-discovery companies looking to capitalize on the emerging market.
As Shannon Capone Kirk, e-discovery counsel with the law firm Ropes & Gray, explains, "The fact that we only have two non-U.S. opinions on predictive coding compared to however many we have in the U.S. is emblematic of the global issue. The U.S. is way ahead of the rest of the world in e-discovery."

Tug of War

Is discovery in foreign jurisdictions really that different from that within the U.S.? It might depend who you ask. Some experts say that while the concepts are the same, where data is produced, culled and reviewed for a case, the methodology to accomplish those steps in a way that fits with both local laws and culture could vary.
Dave Sannar, vice president of international development in Asia for e-discovery provider Catalyst, says that one of the main challenges of international e-discovery is understanding the cultural needs of clients or perspective clients in-country.
"The reality is, Americans have a tendency to do what we used to call 'John Wayne-ing' it, where you shoot first and ask questions later," Sannar says. "And it's not a very effective way of doing business in Asia. It might be a great way of doing business in the United States with other American companies that expect a more aggressive style, but it doesn't work very well in Asia."
For example, he explained that in the company's Japan location, "We're often told by our headquarters in the United States to call and find out on the phone if they have a qualified event coming, meaning a litigation or investigation. Well, the Japanese would never say that on the phone; you need to meet with them face-to-face so they can get to know you."
"It's critical to success to not only understand the differences between the countries, but to understand and recognize the differences between the way that we as Americans normally do business and what is culturally accessible and appropriate in that country, then adjust to make it fit," he added.
Ultimately, he says, "The goal of any foreign company coming to Asia is to eventually be perceived as a local company. It doesn't mean that you have to change everything that you do; it means that you adjust appropriately for the local norm."