eDiscovery is tough in English. Adding foreign language increases the difficulty and complexity by magnitudes. This paper offers guidance on three key challenges of multilingual eDiscovery: logistics, linguistics and culture. By understanding how these areas come into play on multilingual legal matters, global working groups can better equip themselves with the people, processes and tools necessary for successful execution.
No Expensive Surprises
An all-too-common 11th hour nightmare for groups working on global cases is discovering a large batch of highly responsive foreign language content just days before the production deadline. Often, this content has been building up gradually, over the course of the review, but ignored until the last minute.
The resulting fire drill entails contacting translation vendors for urgent cost estimates to complete a million-word project in just a few days, rather than the standard turnaround of several months. The end client receives a cost estimate for several hundreds of thousands of dollars and (understandably) goes through the “5 stages of translation sticker shock”: 1) disbelief, 2) anger, 3) feeling cheated, 4) bravado (“I found a vendor who can do this for half your rate”), and finally, the following day, 5) acceptance (“OK, please move forward”).
5 stages of translation sticker shock
No one likes these very expensive surprises, least of all the translation vendor, who puts together a huge team of linguists and project managers to work around the clock to complete the project on schedule. Avoiding the above scenario is relatively easy: as you build your working group, in addition to onboarding your legal counsel, eDiscovery, managed review and technology vendors, you vet and onboard a professional translation firm (familiarizing the end client with translation pricing in the process) and add it to the workflow to translate responsive documents on a rolling basis.
If that large, last minute translation push is needed, you’ll be much better prepared.
Hire a Native Speaking Review Manager
Another key element of preparation is understanding the differences in skill set and work output between professional translators and foreign language reviewers and staffing your working group accordingly. While a foreign language reviewer is trained to find key elements in hundreds of documents per day, a translator will produce a handful of translated pages (if that) in the same timeframe.
And although it is not uncommon to rely on foreign language reviewers to handle one-off translations as content is discovered during the course of review, this practice should be avoided since, 1) translation falls outside of the reviewers’ key area of expertise, 2) sending translations to off-site translators is more cost-effective than using on-premises reviewers and, 3) the translations that reviewers produce cannot be certified because they are not produced by a professional translator (and therefore are not admissible in court).
“Intimate familiarity with the data in its native language is imperative for the design of language-specific workflows and performance of proper quality control” — Jonathan Rossi, CEO of The CJK Group
To keep your multilingual review team on-track and on-task, Jonathan Rossi, CEO of The CJK Group (a multilingual managed review firm) recommends adding a native-speaking review manager to serve as the coordinator for logistic issues such as the above. “Time and again, we see foreign language reviews improperly managed by English speaking personnel. To succeed, project managers must be deeply integrated into the review. Intimate familiarity with the data in its native language is imperative for the design of language-specific workflows and performance of proper quality control.”
Know your Moon Cakes
An additional expert you might want to consider adding to your working group is a multilingual search term consultant (often available via your translation, eDiscovery or managed review agency). “The multilingual search term consultant’s understanding of linguistic and cultural nuances can mean the difference between capturing critical information or leaving it completely overlooked” says Ben Rusch, VP at Consilio (a global eDiscovery and managed review provider). This consultant will ensure that grammatical, linguistic and cultural issues are taken into consideration during search term list development.
For example, a “moon cake” is a traditional Chinese delicacy given as a present during the moon cake festival, and a “red envelope”, is a monetary gift given in China and other East Asian countries for holidays and special occasions. If your team is involved in a white-collar investigation of a Chinese company, it’s imperative that while creating a list of search terms, “red envelope” and “moon cake” are included, as they can both be euphemisms for questionable payments.
Another example noted by Rusch: that in the Korean language, there are many ways to convey the titles of senior employees of a company (with the title of CEO having as many as twenty variants). Not every title has an exact English corollary. If the top executives of a Korean company are the subject of an FCPA investigation, it’s critical that the working group knows to add all variations of these key terms to the search term list.
How Machines Can Help
No discussion about best practices in foreign language eDiscovery would be complete without exploring the potential application of machine translation. While rapid advances in neural machine translation are already changing the translation industry landscape, industry experts generally agree that legal content (similar to medical, financial and technical texts) will be one of the last areas to see a significant shift from human to machine; due to both the absolute need for accuracy and to skepticism on the part of government and regulatory agencies regarding MT’s utility.
Legal content will be one of the last areas to see a significant shift from human to machine
There are, however, enhanced machine translation techniques (that bookend MT’s volume and speed capabilities with human seed set translation and post editing) that are gaining traction in the legal space. Pete Afrasiabi, CEO of EMT provider iQWest, states: “As data volumes grow, we’re seeing more and more interest from attorneys and eDiscovery managers in understanding how advances in neural artificial intelligence are improving enhanced machine translation and how the process can help reduce costs and meet tight deadlines”.
As MT continues to improve, and as technology continues to make critical inroads in all areas of the legal world, the legal community will become more acceptant of and reliant on machine translation.
In summary, as the volume of cross-border legal matters continues to grow, the addition of multilingual experts to global case teams will continue to become more commonplace. In the process, legal working groups will become more familiar with the logistic, linguistic and cultural challenges that are specific to multilingual matters. Familiarity breeds confidence and confidence breeds competence and success.
About the author: Over the past 20 years, Mark Hjerpe has played a pioneering role in the growth of the global language services and technology industry. He has lived and worked in Latin America, Asia and Europe, developing best practices in translation management and streamlining multilingual workflows for global corporations and law firms. In his role as a partner at Divergent Language Solutions, Hjerpe guides global legal working groups through the challenges of multilingual discovery and investigation.
About Divergent Language Solutions: Divergent is a legal and corporate translation company that provides certified document translation and interpretation in over 100 languages to global law firms and corporations. Divergent’s client list includes over 50% of the Amlaw100 and many of the world’s largest companies entrust their most sensitive translations to Divergent. Divergent supports all types of international litigation and arbitration matters, FCPA, cross-border M&A and other global cases with foreign language content.