When Borders Complicate Evidence Discovery

What’s the backdrop for cross-border investigations involving jurisdictions in Asia?

When a multinational company faces litigation, a regulatory inquiry or an internal investigation, the immediate need is to identify the data and move quickly. But when significant portions of that data sit inside countries with strict data protection laws and other nuances, such as those across Asia, moving quickly without local expertise can compromise the entire matter. Data sovereignty laws, state secrets restrictions, language barriers and forensic complexity turn what might seem like a logistics challenge into a legal and strategic problem.

What are some examples of the unique complexities?

The complexity stems from overlapping legal frameworks that have don’t always have clear parallels in Western practice. China’s state secrets law can render certain categories of data untransferable outside the country — or requiring an onerous and expensive state secret review by an approved law firm in China — even in the context of a court-ordered investigation. China’s cybersecurity law further restricts the transfer of personally identifiable information across borders. These are enforceable restrictions that can result in serious consequences for companies and local employees who attempt to move data without proper authorization.

Beyond the regulatory environment, there are significant practical challenges. Evidence that is straightforward to collect in a U.S. environment may require entirely different handling protocols in Asia. Local courts and regulatory bodies also have distinct expectations about how evidence is presented and authenticated, which means collection methodology must be defensible according to numerous sets of standards.

Why does the timing of expert engagement matter so much in these matters?

Early engagement is often determinative. 

In cross-border matters involving Asia, the consequences of delayed expert involvement are amplified. Organizations have seen matters stall when their providers lacked in-country capabilities or familiarity with local regulatory requirements. In these scenarios, by the time the right team is in place, pressure has often mounted in the face of court-ordered deadlines. Engaging experienced local experts with global reach early on allows teams to anticipate problems before they become crises, protecting the integrity of the investigation and the credibility of the evidence. FTI Technology has purposefully recruited local professionals in cities across Asia who are familiar with the language, customs and culture.

How does in-country presence affect the outcome of a complex investigation?

Having an established team physically present in the relevant jurisdiction removes logistical barriers that derail other providers: the need to relocate personnel across borders, obtain local data access remotely or rely on third parties that may not share the same methodologies or security standards.

When a matter requires on-site collection in countries or situations where physical data security is paramount, local teams can establish on-site infrastructure, including secondary portable databases with strict access controls, air-gapping and encryption protocols. That ensures the investigation meets both local requirements and the client’s broader legal obligations.

Cross-border coordination between teams working on the same matter across multiple geographies allows large investigations to produce coherent, defensible results rather than fragmented data sets.

What can organizations do now to reduce their cross-border investigation risk?

The most effective step is to develop an investigation readiness posture before a matter arises. That means understanding where data lives across the enterprise, which jurisdictions that data is subject to, and what local laws govern its handling and transfer. Additionally,  organizations should evaluate their forensic and e-discovery partners in advance. 

Digital evidence in cross-border matters involving Asia rarely tells a simple story. The regulatory constraints, the language of the documents and the expectations of multiple legal systems all shape how evidence is collected, analyzed and ultimately presented. Organizations that understand that complexity in advance will be better positioned when the stakes are highest.

The views expressed herein are those of the author(s) and not necessarily the views of FTI Consulting, its management, its subsidiaries, its affiliates, or its other professionals.