CONFIDENTIAL P a g e | 1 March 5, 2015 East Meets West: The Cultural Impact on eDiscovery By: Ashley Smith, Managing Director, Navigant Consulting, Inc. Made up of 48 countries, Asia is the largest and most populous continent on earth1. As there is no clear geographical separation between Asia and Europe, its’ boundaries are often determined by culture. And yet, Asia varies greatly across and within its own region with respect to economics, government, and legal systems. For example, while the laws of Hong Kong and Singapore are principally based on English Common Law, the People's Republic of China (PRC), Japan, and Vietnam are Civil Law jurisdictions. Dealing with data when litigation or an investigation occurs is a complex problem. Introduce data privacy and confidentiality concerns, coupled with competing rules of law across jurisdictions, and you have the recipe for, arguably, the most challenging eDiscovery market on earth. The rule of law, however, is only a small piece, in a much larger puzzle. The historical and cultural traditions of a society, inform the law of that society. In order to successfully navigate the regulatory environment of a jurisdiction, you must first appreciate the cultural differences that underpin the business, government and legal system. Culture Informs Law In her 2007 infographic series East Meets West2, artist and visual designer Yang Liu, created minimalistic visualizations using simple symbols and shapes to convey how different Western and Eastern cultures really are. The blue side represents Germany (as an example of western culture) and the red side China (as an example of eastern culture).3 Figure 1: How to Stand in Line4 1 Statistics pulled from National Geographic Family Reference Atlas of the World. Washington, D.C.: National Geographic Society (U.S.). 2006. p. 264, and the "Continents of the World". The List. Worldatlas.com. Archived from the original on 22 July 2011. Retrieved 25 July 2011. 2 Liu, Yang. East Meets West, Schmidt Hermann Verlag (August 1, 2007). Print. 3 East Meets West: An Infographic Portrait by Yang Liu, Submitted by Rainer Falle, http://bsix12.com/east-meets-west/ 4 All of the Figures used in this article where pulled from Yang Liu’s 2007 infographic series East Meets. CONFIDENTIAL P a g e | 2 March 5, 2015 I first saw Yang Liu’s work in 2010. By that point, I had lived and worked in China, Japan, and Indonesia, and thought I had a pretty good handle on the regulatory requirements effecting eDiscovery; however, Ms. Liu’s visualizations underlined the cultural differences, which in turn, informed an entirely new understanding of the eDiscovery challenges. During my first visit to China, I vividly remember being shoved, pushed, and practically carried onto a subway car once the doors open. This was true everywhere – at the food stand, ticket depot - there was literally no such thing as standing in line. In fact, the cultural difference between East and West for ‘queuing’ was so apparent that in the year running up to the 2008 Beijing Olympics, the Chinese government—in an effort to make the city more “civilized,” or wenming (文明)—instituted “Queuing Day.” The day, which fell on the 11th of every month (since the two numerals are standing in a row), was dedicated to educating residents on how to wait in line. Though the campaign has largely fallen by the wayside, bus stops in and around the capital are still stamped with biaoyu (标语, slogans) about the importance of waiting in line. Standing in line might not seem like it has an anything to do with eDiscovery, but it does. The simple act of standing in line can illustrate the principles of that society, and how the citizens interact with each other, and with authority. Do they push and shove to get what they want? Do they yell or shout? How is business conducted? At a boardroom presentation, or through personal exchanges of gifts? Consider the different business attitudes toward “the boss”. Figure 2: The Boss In China, your place in the company hierarchy is extremely important. Not only are leaders and managers on a much higher pedestal, but the distinction between the levels of management is much more important. Many Chinese leaders and managers expect respect from their subordinates and in many cases expect to be obeyed without question, no matter the rationality or fairness of the request. Consider that cultural difference and how it might affect an investigation. Would it change how you conduct witness interviews, or data collection? It should. Where is potentially relevant data likely to be stored? How might instructions be given? Who is the ultimate decision maker? These relationships, or Guanxi (關係), describe the basic dynamic in personalized networks of influence, and is a central idea in Chinese society. CONFIDENTIAL P a g e | 3 March 5, 2015 Figure 3: Connections and Contacts The manner in which connections and contacts are forged and maintained in Western and Eastern cultures is very different. In Eastern culture, who knows who, and who is connected to who, in a business deal can often be quite complex. In an investigatory setting, it’s important to remember that not all business transactions are transparent to outside observers. Often the sphere of influence resides outside the scope of the matter. In addition, understanding the layers of connections, contacts, and influence can be hindered by the need to “save face”. In China, and much of Asia, “face” represents a person’s reputation and feelings of prestige within multiple circles, including the workplace, the family, personal friends, and society at large5. Causing someone to "lose face" - even if done by accident - is an infraction rarely forgiven. If a business transaction is later called into question during an investigation, it can often be difficult to ascertain how the situation unfolded as individuals might not want to admit wrongdoing, or point to their manager (who is of a higher class), as it might result in them “losing face”. It is critically important to remember these sensitivities when framing interview questions, identifying potentially relevant data stores, or interacting with custodians. Several years ago, while I was living and working in Japan, I had a matter that involved a data collection at the client headquarters. In the United States it would be customary to immediately meet with the IT manager and their team to create a data map of potentially relevant Electronically Stored Information (ESI); however, a similar process could not take place in Japan. Instead, an introductory meeting to establish relationships is a key first step. In these meetings, where people sit at the table, the language used in the formal introduction, the ceremonial business card exchange, are all critically important to establishing trust and a professional relationship. The emphasis in Japanese culture on maintaining harmony has developed in such a way as to allow very vague forms of expression. The cultural logic behind this is that by avoiding direct or explicit statements one has a better chance of not causing offense. Meetings usually take place for only one of three reasons: to build rapport, exchange information or confirm previously made decisions. Decisions are rarely made in a meeting. This can be incredibly frustrating for Westerners who are more accustomed to following agendas, asking and answering questions, and making decisions at the time of a meeting. In the situation above, I could not ask pointed network infrastructure or data retention questions in the actual meeting, which were critical steps in the collection of potentially relevant ESI. If I had, and the manager or any team members 5 Upton-McLaughlin, Sean. Gaining and Losing Face in China, 10/10/2013. http://chinaculturecorner.com/2013/10/10/face-in-chinese-business/ CONFIDENTIAL P a g e | 4 March 5, 2015 did not know the answer to the questions, they would have lost face. Instead, it was important to understand the team structure and identify who was best positioned to have the necessary information, and request a separate meeting to discuss particulars. Remembering, that even at that meeting, decisions would not likely be made, but the questions could be outlined, which they would consider outside the scope of the meeting, and return with answers. To further complicate the situation, if a transgression is made, it’s often difficult for the offender to know they’ve caused offense. Again, this comes down to culture. Before I lived in Japan, I spent a great deal of time working in Germany. Going from one business culture to another was striking. Where in Germany, it was quite normal to have lively debate around the boardroom table, in Japan, the opposite was true. What was said, and what was felt, where often two very different things. Figure 5: Anger This lack of transparency can often be rooted in language differences. Seemingly simple “yes” or “no” questions can lead to ambiguous answers. That is because, many Asian languages lack words for yes or no; therefore, in order to respond to negative questions it’s necessary to reverse the meaning of the answer. Figure 4: Complexity of self-expression CONFIDENTIAL P a g e | 5 March 5, 2015 For example, if I ask, “She didn’t eat breakfast this morning?” a native English speaker would say “no” meaning, no she didn’t eat breakfast this morning. But a Chinese person learning English, for example, might answer as if there was no negation: “Yes, that is correct. She didn’t eat breakfast this morning.” Similarly, many people mistake the Japanese words "はい" (hai) and "いいえ" (iie) for equivalents to yes and no, but they actually signify agreement or disagreement with the proposition put by the question: "That's correct." or "That's incorrect."6 7 The complexity of self-expression, as well as the linguistic differences, can lead to ambiguity and confusion during witness interviews, data collection, as well as subsequent translation and filtering of potentially relevant ESI. All of these tasks are vital to the eDiscovery process, and are directly affected by the cultural differences between East and West. It’s also easy to see how these cultural attitudes inform the laws regulating data privacy and “personal information.” In the PRC, for example, the vague, and in some instances seemingly conflicting regulatory language, surrounding data privacy and state secrets, mean that it is hard to get advice that matches the reality of a given situation. Figure 5: Problem Solving Approach Navigating China’s data laws is perilous, especially when it deals with moving data out of the country. What is considered open economic information in many parts of the world may be deemed a “state secret” in China. Moving such information out of the country can bring massive fines. Even transferring it from the mainland to Chinese regions such as Hong Kong or Macau can trigger problems. Simply being in possession of such sensitive data can be incriminating. The PRC is one of the few countries in Asia without a comprehensive law regulating the use and handling of personal information. The Information Security Technology-Guide for Personal Information Protection within Public and Commercial Systems (“Guidelines”), China’s first-ever national standard for personal data privacy protection, came into effect on February 1, 2013; however, these Guidelines, are exactly that – Guidelines. They are not “legally binding”. Instead, they are intended to provide guidance on protecting personal information (PI). Additionally, in April of 2013, the Ministry of Industry and Information Technology of the People’s Republic of China (the “MIIT”) enacted two draft rules, “Provisions on the Protection of Personal Information of Telecommunications and Internet Users” and “Provisions 6 Yoshii, Bork, Milne, Katada, & Zhang (2004). "Reaching Students of Many Languages and Cultures". In Sanjaya Mishra. Interactive Multimedia in Education and Training. Idea Group Inc (IGI). p. 85. ISBN 978-1-59140-394-4. 7 John Hinds (1988). "Words for 'yes', 'no', 'maybe'". Japanese. Routledge. p. 45. ISBN 978-0-415-01033-7. CONFIDENTIAL P a g e | 6 March 5, 2015 on the Registration of Real Identity Information of Telephone Users”. Again, these rules are in draft form, and focus on telecommunications and internet service providers; however, they provide further insight into how the government may regulate PI in the future. Vague regulatory language allows for interpretation and inconsistency in how the law(s) are applied. For example, the Accounting Management Measure prohibits entities within the PRC from exporting or taking their “accounting archives” outside of PRC territory. Meanwhile, it is legal to “copy” them.8 This common theme of ambiguity in Chinese law is no accident when you consider the cultural attitudes that informed the law. Some may argue that the regulatory language allows for flexibility; however, when you are attempting to navigate the regulation in the context of eDiscovery it can more often feel like a trap. Conclusion When conducting eDiscovery in Asia it’s important to remember how the cultural attitudes and customs inform the legal system. Ambiguous regulatory language is deliberate. The customs and culture of a society must be considered to successfully manage your eDiscovery challenges in Asia. It is important to engage experts who are intimately familiar with, and appreciate, these nuances, and can navigate these complexities without neglecting your US regulatory obligations. Knowing that a queue is not always in a straight line, and that an affirmative answer may not always mean “yes”, will have an immensely positive impact on your international approach to eDiscovery. 8 Management Measures, Article 18; Archives Law, Article 24.