Commercial litigation is becoming increasingly transnational and complex, making document production ever more burdensome and voluminous. Documents subject to legal holds are often stored electronically on servers and hard drives across the globe. When a client decides to discover electronically stored information (“e-discovery”) in China, the diligent lawyer should be aware of the following two issues, among others.

Privacy Issues

Privacy issues can arise during e-discovery due to the possibility of producing personal information regarding employees or customers. It is customary and accepted for Chinese employees to store personal information such as vacation pictures or social networking data on employer-provided computers.

China currently has no national legal framework to address privacy concerns. However, privacy is quickly gaining currency as a topic of legal significance and many local and regulatory entities have taken the initiative to close the gap. The 2006 Amendment to the People’s Republic of China (“PRC”) Criminal Law criminalizes certain types of collection and disclosure of personal information. Privacy became a right for the first time upon the promulgation of the 2010 PRC Tort Liability Law, which creates a private cause of action for civil damages. Since 2010, several employees have successfully taken legal action against their employers for unauthorized taking of personal information from their work computers.

To reduce the risk of litigation, employers would be advised to obtain informed, specific consent from employees before proceeding with e-discovery of documents that might contain personal information.