The World Is Flat: Handling Foreign Language Documents in eDiscovery Projects

Early in my (Darryl Shetterly [the author]) eDiscovery career I learned the unanticipated presence of foreign language documents can throw a project budget and timeline for a loop.  We were on budget and ahead of schedule when . . . BAM!  Lots of Asian language documents!  The English speaking team I had so carefully built and trained was suddenly unable to complete the task.  What to do?

The world is flatter now.  Anecdotally, we encounter an even higher volume of foreign language documents today as we help our clients comply with their eDiscovery obligations.  Foreign language documents introduce an additional layer of complexity and without the proper mix of the right people, process and technology, costs rise and deadlines slip.

Here are a few things to consider when facing foreign language documents in eDiscovery:

 

PEOPLE

Much ink has been spilled over communication in the eDiscovery context: legal and IT notoriously speak different languages and many litigants seem to speak different languages when negotiating eDiscovery issues.  When you introduce German, Italian or Spanish documents into the mix, the “people” element can get downright unwieldy.

Project Management:  Ever tried to manage a team of French speaking attorneys as they review documents written in French?  Answering their questions about how to categorize borderline documents and checking their work for quality presents challenges.  On a project of any size, you need a project manager (or team lead) that speaks the language and understands your case.

Human Translation v. Machine Translation:  Human translation is more accurate; machine translation is cheaper.  Machine translation is often called “gist translation” because it gives you the gist of a document.  There is a time for each.  Given cost and quality constraints the workflow model typically is:

1. use a native speaking review team to categorize documents identified for review and get a certified human translation of the subset of documents that are most relevant;  
2. use machine translation to allow an English speaking review team to categorize documents and get a certified human translation of the subset of documents that are most relevant; or 
3. use a hybrid of these two methods based on triaging the larger document population by content, e.g. by custodian or document topic identified by clustering or other technology tools. 

Remember, not all human translation or machine translation software is created equal; you often get what you pay for.

Custodians:  Setting aside time zone issues and complex privacy protocols, interviewing a document custodian in a country on the other side of the world and collecting their relevant documents are tough tasks.  The custodian may not speak your language, or worse, may misunderstand your request and point you to the wrong documents.  Use a translator to facilitate the interview or have the interview questions translated.  In projects involving a high volume of custodians, it may be more cost-effective to train a translator to perform the interviews.

Review Team:  If you need 40 attorneys on short notice to categorize Russian language documents in nearly any medium sized city in this country you will pay a very high rate – if you can even find them.  Consider using technology to tier documents by importance and route the lower priority documents to a non-attorney review team.

Cost: Multilingual attorneys are often significantly more expensive then their English-speaking equivalents.  This is another good reason to leverage a non-attorney review team if it makes sense for your case.

 

PROCESS

Noodle through the impact foreign language documents will have on your current workflow and establish processes to mitigate this impact.

Workflow:  Categorizing documents by language and routing them to the team identified to review documents in that language is harder than it sounds.  Your Spanish language review team will need a seamless and automated method to route mischaracterized English documents to your English review team.  Add a tag to the coding form for each language and automate the process of queuing documents for review by the correct team. Why bother, you ask, can’t the Spanish review team speak English too?  Cost – remember, you are paying the Spanish team more so you want to have your English team handle as much as they can. 

Communication Protocol:  Whenever you have multiple teams working on a project there is a potential for communication breakdown.  Establish clean lines of communication so each review team is getting the same information and categorizing documents consistently.  Since information needs to flow in both directions, identify the person on the litigation team that should be notified when one of the teams locates a “hot” document.  Also specify how that notification should occur.

Document Production:  Producing foreign language documents may be more expensive and time consuming than their English language equivalents.  The cost and time required to translate an entire document production can be considerable.  Some government agencies require documents produced in response to a government investigation be produced in English or with an accompanying translation.  Discuss production language in your 26(f) conference and incorporate that decision into your eDiscovery protocol.

 

TECHNOLOGY

Once you have the right people and process, you still need technology that can handle your workflow.
   
Review Tool Functionality:  In addition to the native documents and corresponding text loaded at the outset of the project, you may also want to load a machine translation version and/or a human translation version.  If you add an image (for drawing redactions) and a production image for deposition and trial preparation, you will have four or five versions of a document in your database.  How will your review tool group these versions?  How much will it cost to host these additional versions?

Global Delivery Platform:  If you have trouble staffing a review due to the lack of attorneys in your area that speak a specific language, then you need to take the work to the attorneys.  To take your work to a different city or country you will need access to office space, computers, keyboards, sufficient bandwidth to support a review team and building access restrictions to avoid a data security breach.   

Search Functionality:  Clearly the English language search term list you negotiated during the 26(f) conference will not retrieve documents in other languages.  There are technologies that will translate your search terms to other languages, but these tools typically depend on strict word translations and may not account for cultural differences in word usage.  Ask the custodians that created the foreign language documents what terms they would use to identify the relevant documents.  Work with opposing counsel to develop a list of search terms that make sense.

Language Identification: 
When using technology to group documents by language, it is not uncommon for 20 percent of the documents to be mischaracterized.  Mischaracterization typically occurs because the machine picked up on a name, address or phrase in an English document that it identifies as non-English, e.g. Carlos Rodriquez or custodians who use non-English phrases in their e-mail signature block (“C’est la vie”).

 

SUMMARY

Foreign language documents will add time and cost to an eDiscovery project lifecycle.  You can mitigate these side effects by marshaling the right people, process and technology.

For More Information: 

Daryl Shetterly recently recorded a 15-minute segment on “Multilingual eDiscovery Trends” with one of my partners, Bill Belt.  The discussion was moderated by Kristin Hansen at Lionbridge.  To view the presentation click here.

Learn more about e-Discovery and its impact for German companies, click here: E-Discovery.

by Daryl Shetterly || The e-Discovery Myth

Was sind typische Fehler, die deutsche Unternehmen bei der E-Discovery aus den USA machen?

 Axel Spies von Bingham beantwortete diese Frage für uns:

Viele deutsche Unternehmen wissen nicht, was E-Discovery oder Litigation Freeze bedeutet und unterschätzen den erforderlichen Aufwand.  Eine sachkundige Beratung mit Experten im Frühstadium des Prozesses  (Early Case Assessment)  und zur Organisation der  Dokumentensammlung wird häufig vermieden. Dadurch werden fehlerhafte Prozesse ins Rollen gebracht, die zu enormen vermeidbaren Kosten führen können, wie das unnötige Ausdrucken von elektronisch gespeicherten Dokumenten oder die Auswahl falscher oder irreführender Schlüsselwörter für die Suche. Ein manuelles Anlegen oder Neuformatierung von Dokumenten, Listen und Indizes ist auch häufig vermeidbar. Viele Unternehmen machen sich auch zu wenig Gedanken darüber,  ob sie nach deutschem Recht die gewünschten Daten überhaupt in die USA übermitteln dürfen.  All das führt zu vermeidbaren Schwierigkeiten und Kosten später im Verfahren.

Lernen Sie mehr über das Thema E-Discovery: Laden Sie sich hier kostenlose Artikel, Whitepaper und Präsentationen herunter: E-Discovery 

Prosecuting the unspeakable: how e-discovery aids war crimes trials

A report by projectcounsel 

Uncovering a mass grave near Srebrenica.  Unarmed Bosnian Muslim males were rounded up and murdered and bulldozed into mass graves.

By:  Gregory P. Bufithis, Esq.     Founder/CEO  

Over the last few years the Project Counsel team has been involved in many aspects of war crimes trials and human rights abuse cases, from the e-discovery/staffing side (providing attorneys for special projects, managing the accumulation/organization of evidence, etc.) as well as coverage of the trials themselves through the media division Project Counsel Media.  But they have not seen such a cascade of events such as we have seen in the last two months.

Today marks the 15^th anniversary of the massacre at Srebrenica.    The biggest event in the last few months was the capture at the end May of the former Bosnian Serb commander Ratko Mladic who engineered that massacre after 16 years on the run.  Extradition was quick:  he was handed to the Yugoslav war-crimes tribunal in The Hague on May 31st to stand trial.  His arrest is good news for the relatives of those killed at Srebrenica and for international justice, which may be slow but doesn’t forget.

Equally important were two court cases:

-  a Dutch court has held the Netherlands responsible for the deaths of three Muslim men executed by Bosnian Serb troops in the massacres at Srebrenica. The unexpected ruling could open the field for new suits against the Netherlands by relatives of other Srebrenica victims.

-  A U.S. federal appeals court reinstated a lawsuit by Indonesian villagers that seeks to hold Exxon Mobil liable for alleged killings and torture committed by Indonesian soldiers guarding a natural-gas plant in the country’s Aceh province.  Among its holdings, the appeals court ruled that corporations can be held liable under the Alien Tort Statute, a 1789 federal law that allows U.S. suits for violations of international law.

Shortly after the capture of Ratko Mladic Project Counsel wrote a short piece on the political/legal issues surrounding “the G-word”: genocide.  But there is a fascinating e-discovery element to these war crimes proceedings, and how the United Nations faces the need to manage the accumulation, organization, and access to evidence relating to war crimes.  The UN team that is responsible for gathering and handling the information to be used in such trials faces the challenge of making millions of documents in many formats and many languages available to prosecutors, defense attorneys, judges, and other court stakeholders.  This war crimes evidence originates in multiple formats from disparate sources, for example — TV program tapes, radio broadcasts, news and military photographs, home movies, home photos, recorded telephone communications, and other rich media formats in addition to masses of paper documents and the standard electronic text of emails and other natively electronic documents.

For those of us involved in the commercial sector of e-discovery it can be a most banal experience, having an irredeemable dullness.  But the United Nations war crime tribunals work embody every extreme and special circumstance when it comes to eDiscovery challenges and requirements.  It is thrilling — and gruesome — stuff, with every trial having its own complexities involving data formats, scalability, language support, rules of procedure, and confidentiality.

The tribunals face the daunting task of ensuring full and equitable access to all of this diverse evidentiary information by all parties to the trial. Such access requires that all parties with legitimate “right to know” have to receive complete, accurate, and timely production of requested documents or for topics within documents. The process typically involves multiple professions, such as digital forensics specialists, lawyers, and IT professionals, all with slightly different objectives and requirements, which must ultimately ensure system operations protocols that can be certified by the governing authority, in this case, by the UN tribunal itself.

The e-discovery vendor they chose?  ZyLAB.  And the reasons are simple.  Quoting from a detailed report issued last week by International Data Corporation (IDC) titled ZyLAB: Enabling Prosecution of the Unspeakable:  “ZyLAB’s software also offered a broad range of features and functionality critical to the eDiscovery process. Document capture and sophisticated OCR, for example, had been a foundation capability in developing the company’s business. The ability to recognize documents from different languages and to differentiate and process languages notated in multiple character sets was a system necessity (e.g., evidence in the Milošević trial incorporated over 13 languages, including some written in Cyrillic character sets). The multilanguage query parsing capability supported system users working in one native language to achieve the same results as users working in a different native language. Sophisticated indexing technology was required for the project, which enabled the UN team to use the ZyLAB system to classify documents; exhaustively identify people, features, and entities referenced in documents; and create a text and metadata repository that normalized millions of evidence items while supporting legal review operations that could be executed within the time frames stipulated in the UN tribunal’s procedural guidelines. The software also offered a portal-like interface that provided an intelligent discovery workspace for the set of varied professionals at work on the trial”.

The Office of the Prosecutor had already established a relationship with ZyLAB which has it’s major office located nearby and had done a number of smaller projects with the prosecutor’s office previously, and was willing to commit highly skilled professionals to onsite support. Such support is particularly important because of the complexity of the problems the UN team was facing and because of the foreshortened time frames within which the team needed to make the evidentiary information available to the prosecution and defense teams.

The report addresses key topics for CIO’s and CTO’s to consider in preparation for e-discovery, including connector architecture, disparate system data, recall and search, text analytics, taxonomy, multi-language operations, multimedia operations, etc.   (The link to the report above takes you to the ZyLAB site where you can get a copy for free; the IDC site will charge $500).

NOTE:  ZyLAB software also has a significant presence in Brussels in DG COMP, the European Commission division that monitors and enforces compliance with antitrust and competition laws.

To put it all in perspective what follows is our video interview with Gonzalo de Cesare (political advisor with the European Union Police Mission in Bosnia & Herzegovina) who discusses the UN’s process for managing some of the largest and most complex cases in the world (the Khmer Rouge trials, the criminal tribunals for Rwanda, the trial involving Slobadan Milošević, etc.) with information management and e-discovery management software from ZyLAB.  When you spend time with Mr de Cesare you realize human rights are not a vague or general ideal as far as he is concerned.  Promoting them, pursuing them means defending each individual victim.

At his request Project Counsel interviewed Mr. de Cesare in Spanish but you can watch the interview with subtitles in Arabic, Bosnian, Dutch, English, French, German, Italian, Serbian and Spanish. Just choose from the drop-down menu at the bottom of the screen.

Tip: Interested in learning more about E-Discovery? Check out this website: E-Discovery

E-Discovery - und was nun?

Dr. Stefan Sechting LL.M, Rechtsanwalt, BASF berichtet über E-Discovery Abläufe und Erfahrungen.

Erste Schritte aus der Sicht eines Praktikers E-Discovery Procedures entwickeln und Muster sowie Verfahren für Ablauf des Litigation Hold und des Discovery"-Prozesses vorhalten!

E-Discovery - und was nun?
Erste Schritte aus der Sicht eines Praktikers E-Discovery Procedures entwickeln und Muster sowie Verfahren für Ablauf des Litigation Hold und des "Discovery"-Prozesses vorhalten! 

Laden Sie diese exklusive Präsentation herunter: E-Discovery 

Avoiding eDiscovery Nightmares: 10 Ways CEOs Can Sleep Easier

Plan ahead.

Hidden away in corporate databases are some nasty ticking time bombs.

Nonetheless, few companies think much about the risks of electronic discovery until they face serious litigation. But there are ways for you to avoid the substantial costs and risks from “eDiscovery” before you get hit with lawsuit-related fishing expeditions – and after you get served.

Counting down David Letterman style, here are 10 things you can do to address the risks in electronic discovery:

    * #10: Less is more. Day-to-day efficiencies and litigation preparedness can ensue when an organization develops and implements a “Records Retention” policy and program.  As the U.S. Supreme Court ruled unanimously in 2005 in the Arthur Andersen case, a “retention” policy is actually a destruction policy, designed to keep information from getting into the hands of others, including the Government. So routine disposition of old stale, unneeded and duplicative electronically stored information is the first objective.   Having less information and knowing what the company has – and where – should enable more effective operations. An added benefit is shrinkage of the data set subject to processing – and possibly to exposure to an adversary – in response to a future lawsuit, a non-party subpoena in someone else’s lawsuit or a government inquiry.

    * #9: Sing Kumbaya: In developing the appropriate parameters of an effective, defensible retention/destruction program, make sure that folks from the Legal and IT Departments collaborate. If the key in-house lawyer or outside counsel is from Mars and the essential IT leader is from Venus, then use an interplanetary translator to help develop a litigation-preparedness program. Then everyone can get together and harmonize on the same tune.

    * #8: Preserve or Perish. Have a “litigation hold protocol” that assigns certain significant duties to one key person, usually a lawyer but sometimes a C-level executive. He or she will decide whether or not a legal dispute is “reasonably anticipated” such that a “litigation hold” must be issued to preserve all potentially discoverable information. In addition, he or she will oversee the implementation of the hold. Without an adequate process and memorialization of steps taken – and steps not taken – a company can have a very hard time defending itself against a “spoliation” (illegal destruction) contention raised down the line by a litigation adversary. On the other hand, a routine, “real” and documented approach can insulate against risk. The elephant in the room is that a spoliation finding could morph into a dismissal or default judgment by a judge who becomes frustrated and suspicious.

    * #7: Build the Three-Legged Stool. Form an eDiscovery task force that will stand tall in three arenas: knowledgeable people; a powerful computer-technology platform; and a set of up-to-date written protocols to guide the in-house and outside teams through the process. At a minimum, make sure you have in place a short list of trusted outsiders with expertise in collecting live data and forensically recoverable data.

Interested in more? Access free whitepapers, articles and presentations on E-Discovery - click here...

    * #6: Preserve, Protect, Defend. Preserve as broadly as possible without hampering the IT Department’ s operations and budget. As to the to-be-collected subset of the preserved electronic information, make sure your techie has: sufficient skills to avoid altering metadata (creation date, last modified date); the wherewithal to maintain chain-of-custody information; and the wisdom to segregate a pristine data set so processors and reviewers are only turned loose on a working copy.

    * #5:  Natives Need Not Make You Restless. Consider exchanging email messages and electronic files (especially spreadsheets) in their original/”native” formats. Harness the technology know-how and an agreed-upon method of electronic-fingerprinting to prevent alteration. In many a case, “going native” can avoid huge out-of-pocket costs of converting thousands of items to an image format. Work with the other side up front to enter into a clear written agreement (“stipulation”) as to the format(s) of exchange of electronic information.

    * #4: Get M.A.D.?  Then Get Even. Be careful what you request from the other side as that adversary will assuredly request the same from you. When two companies apply the Mutually Assured Destruction (M.A.D.) principle, they can take off the table costly volumes of data, such as digital voicemails and back-up data created prospectively.  Then hopefully the e-Discovery playing field can be as even as possible.

    * #3: Cooperate to Cull Aggressively and to Preserve Clawback Rights. The less electronic information that gets reviewed by lawyers, the less the discovery costs will be. So, as much as possible before the review team launches in, cull down the data set by employing objective criteria, subjective criteria (search methodology) and concept-searching software. At an early stage, the lawyer most familiar with the substance of the case should spend some time surfing and searching the electronically stored information. Then, based on his/her first cut, alter the review subsets and strategies accordingly. Early in the case, see if you can cooperate with the other side to set respective expectations for culling efforts. At the outset, also use best efforts to reach agreement with the other side as to the mutual right to “claw-back” privileged information that, given high volumes of data, might get through inadvertently. Get the judge to sign on to the clawback agreement so your company will be protected in the current suit and future lawsuits into which the inadvertently produced ESI could wend its way.

    * #2: QA/QC: Periodically use Quality-Assurance (QA) tests to make sure the review is not generating an over-inclusive or under-inclusive data set.  Then, before the data goes out the door, use some Quality-Control (QC) testing before. When agreeing with the other side to a production deadline, build in a cushion for QA/QC on your end. In general, consider involving a search-methodology expert. You may need him or her later on if the other side challenges how you got from Point A (tons of collected electronic data) to Point B (production of a much smaller subset). One key culling arena in which that expert might be valuable would be the segregation of data protected by attorney-client privilege.

    * #1: Never Drop Your Laptop Bag and Run. When urging his law students to never back down, the legendary, 50-plus-years Brooklyn Law School Professor Joseph Crea has always exhorted: “Never drop your briefcase and run!” In today’s digital wild west of eDiscovery, a more modern mantra – for lawyers and non-lawyers alike – might be “Never drop your laptop bag and run!” Some day all of us will be copacetic with electronically stored information and the lawsuit discovery process will be coextensive with eDiscovery.  At that point, routinized court-endorsed people-plus-technology processes will enable all litigants to more readily get to the merits. Until that day arrives, dig in, learn as much as you can and start building repeatable, efficient approaches.


Robert D. Brownstone is the Technology & eDiscovery Counsel and Electronic Information Management Practice Group Co-Chair at Fenwick & West LLP, a Silicon-Valley-based law firm.

Posted by Eric Savitz on Forbes.com
Written by Robert D. Brownstone

Interested in learning more about E-Discovery: Check out the upcoming conference on E-Discovery:  5. Forum E-Discovery | 10-12 Oktober, 2011 in Berlin