A recent Thomson West Report states that the global economy has caused a grand shift in the approach to legal discovery. Whereas traditionally discovery involved the requesting and gathering of information within a jurisdiction, with the increasing use of electronic data storage and multilingual communications around the globe, today attorneys struggle with the need to pursue evidentiary discovery across borders.
The process of gathering EDD (electronically discoverable documents), is called electronic discovery, or e-Discovery. E-Discovery has created numerous challenges, related to dealing with foreign language discovery, and organizing large amounts of multilingual electronically stored information (“ESI” for short).
It is indisputable that the Federal Rules of Civil Procedure allow for the discovery of electronic evidence located in foreign jurisdictions. (Fed. R. Civ. P. 26) However, more often than not, the standards for discovery under the Federal Rules come into direct conflict with the rules of the foreign jurisdiction. This is especially true as the United States has the most expansive discovery rules of any jurisdiction, whereas many foreign, civil law countries see discovery as a violation of one’s right to personal privacy.
Although the Hague Convention, particularly Article 23, was implemented to ease this conflict, in the case Societe Nationale Industrielle Aeropatiale v. U.S. District Court for the Southern District of Iowa, the Supreme Court held the Convention was a “permissive supplement” to the Federal Rules. Thus, litigants can still turn to the Federal Rules’ discovery standards when conducting evidentiary electronic discovery abroad. 482 U.S. 522 (1987).
However, when the foreign electronic discovery comes in a foreign language, a foreign language translation is needed.
See Risk, Jayne, Gembicki, Nika and Emma Karabell. “Crossing International Borders in Pursuit of Evidence: Electronic Discovery on a Global Scale.” E-Discovery. Thomson West.
Click here to read “Foreign Language e-Discovery Translation: Human Translation Versus Machine Translation”.
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