Language translation issues are common in multilingual e-Discovery. And since e-Discovery is coming up in international legal disputes more and more often, various national and international organizations have established e-discovery protocols. For example, under the Chartered Institute of Arbitrators’ protocol, parties are urged to confer early and often on all e-discovery matters to seek resolution on such issues as scope, method and costs.
Further, the Protocol presumes that hard to obtain data falls outside the scope of disclosure (although this presumption may be overcome). In order to successfully fulfill the Protocol’s expectations, foreign language translations of all e-discovery transactions and references will be needed.
When it comes to e-Discovery, there is also a conflict of laws issue between the European civil law tradition and American common law system. However, according to Reino de Espana v. American Bureau of Shipping, 2006 US Dist. LEXIS 81415 (SDNY Nov. 3, 2006), regarding an oil spill near Spain where Spain initiated the lawsuit but failed internally to implement an effective litigation hold on its own email-records and all computers and records were destroyed, the U.S. court ruled the government of Spain was at fault for spoliation.
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