The management of electronically stored information (ESI) created and/ or stored on a company’s computers presents challenges, when such data is in a foreign language. And I am not talking about the challenges related to foreign language translation of the electronically stored information during discovery, also known as foreign language e-Discovery.
Rather, I’m talking about the decision to either preserve or erase multilingual ESI on a work-owned computer, which can have significant legal consequences for both the employer and the employee, if the need to produce foreign language evidence later were to come up in litigation.
In the situation of the employer, most often issues arise because an employer decides to preserve various multilingual data on a computer. However, under Rule 34 of the Federal Rules of Civil Procedure all data contained on the computer, irrespective of the language (English or a foreign language), is likely to be discoverable. For example, if the data in question is in the form of a personal email written in a foreign language and sent from a work computer, this can still fall within the auspices of the e-Discovery rules. The demanding side can have the evidence translated by a foreign language translator per the Rules of Evidence.
On the other side is the employee who, after being terminated, may decide to erase foreign language data from a work computer. On one hand, this erased evidence is most likely recoverable and, regardless of whether it is personal in nature or work-related, will be translated by a foreign language translator and submitted as evidence. On the other hand, if the data is actually erased, the employee can be held liable per the Computer Fraud and Abuse Act. See International Airport Centers v. Citrin, 440 F.2d 418 (7th Cir. 2006).
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