Three Ways To Manage The Challenge Of Multi-Lingual e-Discovery

Few aspects of e-discovery are more complex, expensive and daunting as discovery involving documents in foreign languages.  Let’s face it – e-discovery is a complicated process in English, let alone adding a multi-lingual element into the mix.

Unfortunately, in a globalised economy, with cross-border disputes and international M&A deals happening every day, multi-lingual e-Discovery is a fact of life for most in-house lawyers, and commercial and litigation teams.

The key to successful multi-lingual e-Discovery is a streamlined approach, utilising machine translation and skilled linguists.  Unfortunately, what often occurs is batches of foreign language documents are put into the ‘too hard basket’ and left until the last minute to be dealt with.  This can result in urgent calls to translators, asking them to turn around a project which would ideally take a few months, within a few weeks or even days.  The result – a massive cost to the end-client and an unnecessary amount of stress for everyone involved in the project.

To avoid this scenario, it is imperative to manage the workflow of a multi-lingual e-Discovery project carefully, adding plenty of contingency time to deal with a last minute ‘document dump’ which requires translation.

Here are three key ways to manage multi-lingual e-Discovery.

One – Utilise machines but don’t forget the human element

Although most experts agree law, along with medical financial and scientific texts, will be the last to see a major shift from human to machine translation, advances have occurred.  Language identifiers allow disclosure teams to quickly sift through large amounts of e-Discovery material and identify the languages used, while keyword searchers help them pull out words and phrases pertinent to the case.

Machine translation is far from perfect however.  Although it is quick and cost-effective, an unusual metaphor or colloquial phrase can flummox it, leading to the potential for mistakes or an important point to be missed entirely.

Artificial intelligence and machine translation are improving.  However, for legal discovery projects, they should be used to ascertain generalities, acting as a back-up for human translation experts.

Two – Invest in a native speaking review manager

It is essential that the project manager speaks the native language of the translators.  They need to put together a team of professional translators and foreign language reviewers and organise efficient workflow practices.

Multi-lingual e-Discovery projects can become laborious if the skills differentiation between translators and foreign language reviewers is not respected.  Reviewers are tasked with finding key fundamentals across hundreds of documents in a day; a translator will carefully produce a small number of translated pages in the same timeframe.  This is because translation is a highly-skilled, painstaking process, involving not only knowledge of the language being translated, but the cultural nuances particular to that language as well.

However, truly understanding multiple documents in a foreign language means being able to decipher the cultural context which they were created in.  Adel Salem Bahameed, PhD provides an example of the intricacies of cultural knowledge an translation in his article entitled: Hindrances in Arabic-English Intercultural Translation[1]

“Suppose one comes across the English term owl in text, which is to be translated into Arabic. The term owl refers to a universal creature, i.e. bird. The difficulty lies in the fact that, in English, it stands for or carries positive connotations (wisdom and grace), but in Arabic it is a symbol of pessimism and has other negative associations. The translator in such a case has either to incorporate additional material in his TL version in order to make such implicit connotations explicit in the TL, or resort to explanatory footnotes to make up for the missing connotations in his TL version”.

There is also the problem with untranslatability, which occurs where there are culturally-specific expressions which have no equivalence in other languages.  Even something as simple as the expression of a word can change its meaning.  For example, in Russian, Я плачу, ja plachU, means ‘I’m paying’, while я плáчу, ja plAchu means ‘I’m crying’.

Having a project manager who can work closely with the translators and reviewers in the language of the discovery documents will ensure everyone works together efficiently and effectively.

Three – Use a native speaker to obtain custody of foreign language e-discovery documents

One of the fastest ways to frustrate yourself, your team and ultimately, your client (when they receive the final bill) is to try to gain custody of e-discovery documents without the help of a translator.  The custodian of the documents may easily misunderstand your request and deliver the wrong material[2].  Therefore, having a native language speaker interview the custodian in their language significantly improves the chances of having the correct documents delivered the first time.

Final words

Multi-lingual e-Discovery will continue to increase, even though, despite the best efforts of some world leaders, globalisation continues.  Contracts and disputes between corporations and governments in developing nations in Africa and Asia and western conglomerates provide particular challenges with regards to finding reviewers and translators who can adequately understand not only the native language, but the language of the law.  This is where developments in AI and machine translation will provide the greatest benefit.  But until these developments come to the fore, we will continue to rely on human expertise.

Lineal is a global leader in providing flexible eDiscovery and litigation support.  To find out more about eDiscovery and our other services, please call us on +44 (0)20 7940 4799 or email info@linealservices.com.

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[1] http://translationjournal.net/journal/43culture.htm

[2] https://www.lexisnexis.com/legalnewsroom/litigation/b/ediscovery/archive/2011/09/15/the-world-is-flat-handling-foreign-language-documents-in-e-discovery-projects.aspx

April 16th, 2018|