Discovery Resources

As many have expected for some time, we are beginning to see an increase in the amount of data collected from foreign countries. Even when most of a document collection takes place within the United States, it is not uncommon for a small number of foreign sources to contain information potentially responsive to a matter or investigation. The purpose of this post is not to discuss or debate the numerous security and privacy regulations that may govern foreign collections, but to discuss what is done with the data once all of those requirements have been met and the data is collected. What are the requirements around production and how is the information to be reviewed and potentially used as evidence?

First, there are a number of translation options. Most of these can result in fairly significant expense, and so parties are wise to assess the costs prior to “meet and confer” discussions to determine if the cost outweighs the potential benefit, if the same information has already been translated for other purposes and, if not, what level of translation may be useful. As a first step, many translation companies offer machine translation. While these machine translations offer more accuracy than free software options such as the Google Translate API (whose days seem to be numbered anyway), machine translation is often referred to as “gist translation.” The purpose is not to perform a translation with 100% accuracy, but instead to give readers the “gist” of the document or correspondence. The result of this process is often the ability to separate documents, identify the documents containing responsive information and take those documents to the next step.

That next step, in most cases, is human translation. Human translation will remain more expensive and time-consuming than machine translation, at least until computers can do a better job understanding context, dialect and other language variations which can radically alter the translation. Because human translation is slower and more expensive, it often makes more sense to go through the machine-translated documents first and then send only a subset of those documents through the human translation process. Human translation is much more accurate because human beings are much better than machines at determining context and are fluent in the native dialect required. Whether engaging in machine translation or human translation, it is important to partner with service providers who focus on translation as their core business. With constant focus come formalized processes, including quality control delivered through software and additional human reviewers.

Another option is to engage with attorneys in the country where the documents are collected to conduct review in the original language. This process may result in the highest level of accuracy in determining which documents are responsive (and certainly, the highest cost), but there are questions as to what happens next. Can the documents be produced to opposition or used in trial in the original language? If not, translation will still be required. If translation is viewed as a “first-pass” review, how will the attorneys working on the case use the document contents? The reviewing attorneys may be able to provide some additional commentary on a document-by-document basis, but that will not always be sufficient for case teams preparing motions or trial strategy.

Where document volumes containing foreign language text comprise only part of the total data volumes collected, and assuming that the attorneys have performed the necessary due diligence in developing adequate search terms for the documents that are in English, additional work is often needed to allow searches on documents resulting from translation. This may present one of the most challenging aspects of foreign language e-discovery. Specific search terms tend to be developed based on contextual factors, perhaps related to a specific product name or the way a company refers to a service. Translating the text from a foreign language may result in a number of synonyms which do not appear on the defined search term list but are, in fact, responsive to the matter. In other words, the translations, while they may be technically correct, may not use the same words defined in a keyword list for similar concepts. While these kinds of variations will typically be more pronounced with machine translation,  they can also occur with human translation. Additional due diligence, including data sampling, should be undertaken to ensure accurate search results.

For those organizations able to provide reviewers fluent in all languages included in a document production, it will be important to consider review platform capabilities and limitations. Search and review functionality may be limited when reviewing foreign language documents. For example, some platforms offer advanced technologies not only for conducting keyword searches and attorney review of foreign language documents, but also for conceptual search capabilities, so that documents in all relevant languages can be included when performing conceptual searches.

Production formats should be discussed and agreed upon during discovery conferences. For those productions that include documents resulting from foreign collections, the production language must be considered as well. Obviously, if native productions are required, the original language will be produced. If translations are required, additional text files corresponding to the native file may be produced. However, in many file formats (think multi-worksheet spreadsheets), connecting the translated text to the native file may prove to be difficult.

Efforts involving documents containing foreign languages are not substantially different than any other e-discovery efforts. With the addition of a few extra stages, collecting, review and production of these files should not prove troublesome. While the cost of those extra stages may cause some parties to reconsider settlement, working with an experienced service provider can help alleviate some of those costs, and following proven workflows is more likely to result in high quality productions. Foreign language translation is not part of our core service offering at Fios, but we can certainly attest to the benefits of working closely with experienced, dedicated partners early in the process to properly manage the entire e-discovery process.

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