Foreign Language e-Discovery Translation Services
Certified legal translations are an integral part of multilingual e-Discovery, as global companies and their general counsel continue to identify, collect, and use electronically stored multilingual information in e-discovery while trying to avoid extraordinary fines. Clearly, one of the most pressing issues is that countries have very different laws when it comes to personal privacy, meaning the stakes of international e-discovery are high – to say the least. That being said, choosing to not admit ESI because of these challenges is essentially ‘a self-inflicted wound’. At the heart of cross-border e-discovery challenges is the reality that personal data is viewed differently from country to country.
While there are different litigation systems worldwide, the practice areas that currently generate e-discovery quandaries usually boil down to three: employment, data privacy, and data protection. Complicating matters even more, when it comes to privacy laws, there are different approaches to enforcement from jurisdiction to jurisdiction and, in the case of Europe, from member state to member state.
Culture and history are key to understanding these agendas. For example, Europe is a quilt of different nations with different histories. Broadly, people feel strongly when they come from a country that has a history of repression. France is particularly wary of privacy regarding political sentiment and Switzerland is queasy about data export. Hungary fiercely protects medical records privacy because in its past dental records were used by the Kremlin to identify dissidents, track them down, and kill them.
There is an increasing resistance of data regulators to broad investigations and a spike in foreign whistleblowers who report improper use of data. As a result, in 1996, the European Union created an “Article 29 Working Party,” comprised of one member from each country that provides advice and opinions on data privacy.
The biggest issue facing international litigants dealing with e-discovery is defining the trigger when parties must start saving potentially relevant data. Specifically, when does the reasonable anticipation of litigation apply in terms of the decision to initiate a legal hold?
In summary, preservation is not simple. Even the US doesn’t have a statute on preservation (although there has been talk about adding one to the Federal Rules of Civil Procedure).
So what’s a litigator to do? First, and most important, one can start by sensitizing your clients — both internal and external — about legal holds and what they mean. Also, remember that jurisdictions vary on what can be admitted, and that in many countries, there is no pre-trial discovery at all.
Another challenge to keep in mind arises in multi-country litigation, where countries have mutually-exclusive requirements. Dealing with jurisdictions where companies are compelled to destroy personal information can be difficult, and “exception to hearsay” rules, limits on legal holds and attempts to consider proportionality as a factor can all create havoc.
But, as with any challenge, there are ways around these problems. For example:
- Records management and retention and email policies can help
- Make sure employees understand legal holds, and understand their responsibilities
- Make sure employees know how long to keep documents, especially with sensitive information
- Leverage your in-house and in-country people and tools
- Companies should consider in advance how to process and cull data, depending on the risk and the volume.
The key message here is to act swiftly. Approach adversaries early and be proactive with the court. Litigators should focus on the parties, rather than non-parties. Judges can make demands on parties, and if different rules and jurisdictions are at play, it’s your job to raise the issues at the Rule 16 conference.