IP Discovery With “Chinese Characteristics”

Will China ultimately introduce civil procedures to guarantee that evidence not only won’t be manipulated or adulterated, but that it will also be produced to an adverse party? What would such procedures mean to the Chinese civil system that prides itself on a high degree of efficiency and depends upon each party unilaterally meeting both a burden of proof and a burden of production?

Mark Schroeder at Deloitte China has written an interesting blog “China’s potential future…eDiscovery and CJR [Civil Judicial Reform].”  Schroeder documents current Chinese experiments at expanding discovery and links it with the pervasive growth of electronically stored information in litigation.  He believes that “China … will ultimately begin to resemble and utilize similar common law mechanisms particularly in “discovery”. 

I agree.  I have discussed elsewhere here the possibility of increased administrative litigation discovery,  calls for increased discovery in civil litigation, and discussions on this topic at a highly successful program held at Renmin University on IP adjudication with over 200 Chinese judges in 2012, and in more recent engagements with the Chinese judiciary.

Interestingly, no one seems to be urging China to adopt the US system wholesale because of its potential for abuse.  However, greater production of evidentiary information in the hands of an adverse party would help in adjudicating cases, particularly in difficult cases such as software piracy or trade secret cases where proprietary information may be in the exclusive hands of a defendant.   These difficulties in “satisfying evidentiary burdens” have also been identified by the Chinese courts as a particular difficulty  in trade secret cases.  

I am less certain than Schroeder that a reason that introduction of discovery mechanisms has been delayed is the necessity of “forming safeguards mainly for security reasons.”  In fact, some courts, such as Jiangsu, have introduced model protective orders to provide for production of confidential information.  In addition, China’s more expansive use of preliminary or final evidence preservation orders can also serve a quasi-discovery function.    China has also introduced new provisions regarding civil procedures that also provide a greater role for the parties in producing and substantiating evidence

Schroeder (like me) also identifies Hague convention discovery as problematic.  According to Schroeder “The Hague “letter of request” process may require 6 months or more and will only retrieve data with a “direct and close connection with the subject matter of the litigation.”   Perhaps, as China permits more robust discovery type procedures and integrates more closely with other legal systems, these limitations may change.

Schroeder concludes that concurrently, common law jurisdictions in trying to contain discovery, have serendipitously legislated discovery rules that look similar to China’s proposed rules as they have promoted the courts control over the evidence gathering process. In light of these developments and the need to produce electronically stored information, Schroeder believes that China will ultimately develop a discovery system like a common law jurisdiction but “with Chinese Characteristics”.

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