When dealing with e-discovery in a foreign language, a professional foreign language translation needs to be used even before an attorney will be able to judge the evidence’s probative value. In the 2010 case Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F. R.D. 497 (D. Md. Sept. 9, 2010), the court ruled that “the duty to preserve is an obligation owed to the court, not to the adverse party”. Specifically, the ruling stated:
“Where intentional and egregious conduct causes spoliation but does not cause actual prejudice, then the integrity of the judicial system is not nearly as breached than is the case where simple negligence results in the total loss of essential evidence.”
The decision goes on to reason that if little or no prejudice results, a terminating sanction may not be appropriate “because the harm to the court’s truth-finding process is relatively slight and lesser (monetary) sanctions will suffice”. On the other hand, “a sympathetic though negligent party whose lack of diligence causes the prejudicial destruction of evidence eliminates the ability of an adverse party to prove its case and may require the imposition of terminating sanctions due to the damage to the truth-seeking process”.
What is noteworthy of this decision is that it is the first US e-discovery case holding a willful spoliator in civil contempt and imminently threatening imprisonment for the willful destruction of evidence. This can be worrisome to attorneys as the discovery process – particularly when dealing with e-discovery – is already tedious and riddled with potential for errors- especially when riddled with foreign-language evidence requiring services of professional legal translators.