The role of information governance in e-discovery – the case of China

Abstract

Purpose This paper aims to examine the situation of organizational information governance (IG) and its relationship with e-discovery in China. Design/methodology/approach This study collects laws, court opinions, cases and relevant literature as data and analyzes their content under the guidance of the framework of Information Governance Reference Model of the Electronic Discovery Reference Model (EDRM). Findings Inspired by discussions on the challenges of e-discovery and, in particular, the relationships between organizational IG and e-discovery in English literature, the present study attempts an examination of the relevant situations in China. It is the belief of the study that the connection between IG and the legal risk as framed in the EDRM is a necessary one for China as the country is opening its door wider and continues to seek multilateral cooperation. The study found out, through observations and analyses, the following distinctions of e-discovery and its relationship with IG in China. Despite the very similar US and Chinese digital technological environments and the similar acceptance of electronic evidence into litigations, the situations with e-discovery/electronically stored information (ESI) and IG are different within a Chinese context. Legal provisions regarding electronic evidence are brief and vague, litigating procedures rely on the explanations of the Supreme Court and the Supreme Procuratorate and, most relevantly, there is only a small portion of litigations that features a large quantity of ESI in the context of dramatically increased cases involving electronic evidence. The evidentiary qualifications of ESI, e.g. authenticity and reliability, are discussed intensively in academic writings, which, however, was done in a rather isolated manner, without referring to the relationships between and among them. The concept of proportionality, which was one of the key constructions in e-discovery discussions in English literature, was not found in these writings. As a result, organizational IG in China is not discussed in relation to e-discovery or electronic evidence, raising the question as to how e-discovery of a large quantity of ESI will be handled, should such cases emerge. Research limitations/implications Extracted mainly from available literature in legal and information fields, this study is necessarily neither exhaustive nor definitive. However, it can be used to further strengthen other empirical data studies. It could be extended within a Chinese context with interviews with legal and IG professionals. In this regard, the reasons that lead to the distinctions as exhibited in the findings could be explored in future investigations. This study does serve as a marker of the position in China compared to the USA. This research suggests that there is an opportunity for comparable studies at a national level, thus generating complementary knowledge for the IG and e-discovery community internationally. Practical implications The findings of the study may be instructive to countries with similar situations, that is, a weak linkage between IG and e-discovery. It may serve as a call for more comparable studies, thus generating complementary knowledge for the IG and e-discovery community internationally. Originality/value The study reported in this paper is the first of its kind in terms of exploring the relationships between IG and e-discovery in the Chinese context.