Ying Wang                                Susan de Silva
Partner, China                          Partner, Singapore

Bird & Bird
A: Asia: Beijing, Hong Kong,
Shanghai, Singapore &
Sydney
W: twobirds.com

In China, an employer bears the burden of proof that the statutory grounds and formalities for termination have been satisfied. To deal with the increasingly important role of electronic evidence, the Judicial Interpretation on the Application of the PRC Civil Procedure Law (issued on 30 January 2015) has, for the first time, defined “electronic data” in a systematic and exhaustive way for civil procedures. As defined, electronic evidence includes emails and electronic data exchanges (online chatting records, blogs, microblogs and short messages), electronic signatures, domain names and audio and visual materials which are stored in electronic media.

Although now recognised as evidence, electronic evidence is subject to challenge in court due to the ease with which electronic data may be tampered and difficulty of verifying authenticity. Nevertheless steps can be taken to enhance the admissibility of electronic evidence.

For example, notarization is commonly used to prove the authenticity of electronic evidence. For electronic evidence stored in a work computer, a notary must be present to notarize: the whole process where (i) the employer takes possession of the work computer from the employee’s custody; (ii) the forensic firm makes a copy of the hard drive of the computer; and (iii) the work computer is subsequently sealed. The purpose of the arrangement is to prove that: (a) the notarization is undertaken directly on the computer while in the custody of the employee and not after the employer has already taken over the computer and may have revised or performed any other act to the computer, which will compromise the authenticity of the electronic evidence from the court’s perspective; and (b) the forensic firm has not revised, tampered with or performed any other act to the computer.

Presenting electronic evidence directly to the court is also a plausible option and in many cases, has similar persuasive value to notarized evidence which can be costly. For example, email evidence can be presented to the court to display the sender, recipient, sending and receiving time, email content and other details related to the email. Whether emails are saved on the local drive or on the company’s server, they can normally be presented to the court with a portable Wi-Fi card. Similarly, cell phones with content formed and stored in the cell phones may be presented to the court as evidence.