Meesun Yang wears two hats at FRONTEO. She is an Associate General Counsel and also the Vice President in charge of Discovery Services. In her legal role, she focuses on contracts and pre-litigation risk assessment, which includes overseeing compliance, arbitration and related matters. As a company VP, she is essentially an engagement manager, overseeing client accounts. But she also offers additional value to her company as someone who grew up in Asia – in South Korea, to be specific – and she understands what can happen when U.S.-based companies and law firms that are embroiled in cross-border e-discovery in Asia don’t understand the special challenges they are likely to encounter there. The interview has been edited for length and style.
How do your two roles affect each other? Are there ever competing interests between them?
Meesun Yang: On their face, the two roles are opposites. As the Associate General Counsel, my primary job is to ensure that the company is protected. I have to be the company’s advocate. On the other hand, as the Vice President of Discovery Services, my role is to be the client’s advocate. There is also the flip side of making sure that the team is functioning effectively and making sure that they have what they need. There can be perceived opposing needs that arise from being the company’s advocate as the lawyer and the client’s advocate as the engagement manager.
Although they seem to be opposite, there are a lot of instances where, because of the issues that I see from the legal perspective, I’m able to anticipate issues that arise for FRONTEO as an organization, and I’m able to educate my engagement management colleagues about them. This may happen in the context of contracts, since that’s a lot of what I see. But it could also be about data privacy. That’s become a bigger focus in recent years, and so there are a lot of clients who are aware of it and are more cognizant of ensuring that those kinds of laws are being complied with.
It’s been helpful for me in my legal role to develop a standard set of guidelines that we can provide to our clients, including the kind of detailed information that our more knowledgeable clients quite frequently ask about.
In effect, you’ve found ways to ensure that you’re collaborating with yourself rather than competing with yourself in these two roles.
Where do you see the most growth in the e-discovery market? What’s driving it?
Yang: There was a lot of growth in the UK and EU in recent years. Everybody was focused on Europe, and we’re at a point where a lot of the e-discovery players are very familiar with that space. In Asia, the growth historically has been a little bit slower, but we’ve seen a lot of growth in the Asian market recently. A lot of players in the European market are jumping into the Asian market. Currently, it’s the highest growth area for e-discovery.
There are a few reasons for that. One is globalization, obviously. There are a lot more companies that are either based in Asia or have a subsidiary office in Asia. Because there’s so much more economic activity there, you’re going to see more companies that are subject to investigation or that have litigation that touches data that needs to be gleaned from those areas. And not just within those countries, but related to U.S. regulatory activity and enforcement actions, which have also increased and frequently can involve cross-border regulatory agencies.
The other reason is that as data privacy and security have become a bigger focus in Europe in recent years, Asia has been doing the same, especially with the promulgation of nationalized data privacy laws and enforcement of them (for example, the Cyber Security Act in China, which was put into effect this past June). Many Asian countries are catching up with laws that have become standardized in Europe. And as the discovery work and the litigation increases in these countries, there’s a greater need to abide by the local regulations as they comply with U.S. legal obligations.
What are the barriers that U.S.-based legal teams need to be most aware of before even starting a cross-border matter?
Yang: I don’t know that there are necessarily barriers. There are certain factors that U.S. teams should consider before embarking on e-discovery in Asia, one of which is the local laws and regulations, which I touched on. As with the EU, there are certain data privacy and security laws that the Asian countries like China, Japan, Korea, Taiwan and so on have established. As with Europe, those countries’ data privacy and security laws are more stringent than those in the U.S. If anything, they are much more similar to the EU laws that require custodial consent for data processing or transfer, or regulations that require the data transfer destination country to have similar levels of data protection.
Because the U.S. does not offer these heightened levels of protection, U.S. attorneys will need to take the necessary steps to ensure that data collection, processing and transfer for purposes of production in the U.S. are all done in a legally sound manner. In China specifically, in addition to these data privacy laws, there are also state secrets laws. These basically say that any information that could be a China state secret cannot leave China. The laws can be tricky because the definition of what could be considered a Chinese state secret is extremely broad and flexible. To ensure compliance with these laws, data that needs to leave China is reviewed by Chinese attorneys who specialize in this area. That’s a special China-specific concern, but generally U.S. attorneys need to be cognizant of, and need to comply with, Asian laws when removing data from any Asian country.
There are also a lot of Asia-based companies that have very strict security standards. Even if the law permitted a data transfer from these countries, there are a lot that do not want data transferred out of the country. Sometimes the data can’t even be transferred outside the building without special precautions. Many times there is a need to have localized facilities within the country where the data can be processed, hosted and reviewed. Sometimes it’s fine if you just access the data from a different country, but they still want the physical data – the server with all of the actual data – to sit within the country.
Another factor to consider in Asian e-discovery involves soft skills. In the U.S., people and companies sue each other all the time. It’s kind of part and parcel of doing business here. In most Asian countries, however, litigation is not so commonplace that it is factored into the company budget. People are not terribly litigious in Asia. When you have a litigation, and much more so an investigation, people get kind of nervous and they don’t take it as lightly as we do in the U.S. Not that U.S. individuals take it that lightly either, but I think there’s a lot more fear and worry around litigation and discovery in Asia, particularly with individual custodians. They can, at times, think that they’re being personally targeted, even though when a company collects data from custodians, it really is because the company needs the data for a request that pertains to the company, not to these individuals specifically.
So there is a need for e-discovery vendors and forensic examiners to take special precautions and to be especially sensitive to these kinds of concerns, because litigation and discovery are not so commonplace in these countries. That also extends to the general e-discovery process that the U.S. attorney may want to explain to the client – even within the legal or litigation departments of these organizations. Because some of these clients, especially those who haven’t had a lot of interaction with the U.S., are not familiar with the U.S. legal process, and especially not with a government investigation.
When there are cross-border discovery matters involving clients processing and reviewing Chinese, Japanese, Korean (CJK) and multi-language documents, what are the limitations of current technology in assisting them?
Yang: There are a couple of major ones. A lot of Asian companies have either legacy systems or even newer systems that contain file types that Western-based processing engines are either unable to handle or do not handle very well. When you go to collect data from Asian countries, there are legacy e-mail and data systems that these Western-based processing engines don’t recognize. Sometimes these processing engines are able to process them, but they can’t do it very well, meaning that they might not get everything. Then there are other times when the processing engines just can’t process things at all because they can’t read these files. One example is an e-mail system called Becky that’s often found in Japanese companies. Another one is a file type that is proprietary to Korea called GUL. It’s ubiquitous in Korea, but when you bring it over to the U.S., there’s no commonly used U.S. application that can readily open it. There are certain Asian-language-based processing engines that are able to open and process these file types, and that’s why selecting the correct processing engine is so important.
The second major issue I see a lot is that Western processing engines can process the CJK files, but after the files are processed, you’ll see documents that have the characters appear as either question marks or wingdings or just illegible characters, even though when you look at the native document, everything looks clean. This is due to Asian language encoding issues that not all processing engines are able to handle properly.
FRONTEO has its own proprietary technology to handle these three languages. What’s special about that?
Yang: The proprietary tool that we’ve developed is called Lit i View. It was developed in Asia specifically with these issues in mind, because when we initially started looking at all of these different tools for processing Asian language data, we found the exact issues that I just described. We built Lit i View with these kinds of issues in mind so that we are able to process both English data as well as these different kinds of Asian data from both commonly used systems and ones that aren’t so common.
How much of the advice you just shared applies to cross-border work just in Asia, and how much of it is broadly applicable to cross-border work in lots of regions?
Yang: Honestly, it’s probably just a good thing to know for all of your matters, whether they’re in the U.S., in the EU or in Asia. I think the thing that might be most specific to Asia is the cultural difference in terms of people’s general reluctance or concerns over litigation. In the U.S., the companies plan for litigation and actually budget litigation and legal spend into the overall company budget. In Asia, that generally doesn’t happen (aside from the very large corporations). In Asia, litigations and investigations are not thought of in the same way as in the U.S. It’s one of those things that could be considered a source of embarrassment for a company. And so it’ll be important for law firms and vendors to be especially sensitive to that, to make sure that the clients are apprised of what’s happening and understand what to expect in order to allay their fears.