Practical Planning in International Matters
Sue Knox and Rob Jones, Kroll Ontrack
Each year more business is being done internationally, from small Internet transactions to major corporate deals. At the same time, organisations are increasingly finding themselves involved in international legal proceedings, be they disputes or regulatory investigations. And more often than not, these matters involve evidence from multiple jurisdictions.
Exercises involving evidence from multiple jurisdictions can be fraught with difficulties. Multiple applicable laws and rules may mean multiple potentially conflicting obligations, and communication and review challenges may arise out of cultural and language differences. Identifying and addressing these issues early on can mean avoiding costly and potentially damaging problems arising from the legal, linguistic and cultural differences.
Multiple relevant authorities
Legal matters that cross borders will usually implicate – directly and indirectly – laws and regulations of multiple jurisdictions. In addition to the specific legal authorities driving the litigation, arbitration or investigation, the parties may be subject to data protection, privacy, employment and other laws of several jurisdictions (possibly at several jurisdictional levels within a single country) as well as to the laws and rules that would apply should an additional related litigation or investigation arise.
Thoughtful, early consideration of all of the laws and rules that might apply can result in significant time and cost savings in the long run, and may also be the key to avoiding unpleasant legal challenges. Compliance may be a matter of carrying out certain practical measures that may be easy to implement as part of an overall disclosure plan. For example, later challenges to the collection and use of individuals’ data may be avoided in some cases through written advance notice and compliance with certain procedures. Similarly, severe sanctions from a US court for spoliation might be avoidable through the distribution of appropriate notices and preservation of system backups. It can certainly be worthwhile to ponder the full range of potentially applicable laws before embarking on an international evidentiary exercise.
Effective and appropriate communication
Time spent early on addressing communication issues – both cultural and linguistic – can likewise prove valuable. It may be important to communicate with many individuals in order to give legally required notice of work that is to be done with their data. More fundamentally, though, the form and content of communications from lawyers regarding data to be collected may significantly affect the scope and nature of the data captured in the collection process, which in turn might affect a party’s position in the underlying proceedings.
The legal team should be careful to identify all potentially relevant information, not only to comply with disclosure obligations, but also in order to develop the client’s legal position and present it as powerfully as possible. To maximise cooperation, it is usually important to communicate to individual custodians what is needed and why. Thoughtful planning may again significantly improve results and decrease overall costs.
Another important element of this part of the exercise, is understanding the culture of communications, particularly business communications, within each relevant jurisdiction and addressing individual custodians in accordance with accepted custom.
Addressing language issues
Language issues, and in particular translation issues, can be an even bigger impediment to communication – and to a straightforward review of documents – than cultural misunderstandings. Subtle questions of phrasing can quite often sit at the heart of legal battles. It is therefore no surprise that translations of key documents, and even of ancillary materials, can be problematic.
Legal teams often elect to review documents in their original languages, not only because of the potential time and cost savings in avoiding translation of all foreign language documents, but also in order to have the most direct access to the documents. Recent developments in online review technology have now made it easier than ever to work efficiently and effectively with documents in multiple languages.
Working with multilingual evidence
New technologies allow legal teams to:
- Quickly get to the root of matters involving multi-lingual evidence, exposing key lines of inquiry
- Prioritise sources of evidence for review; and
- Take swift and decisive action with a highly organised approach.
What is interesting is that language need not be considered a barrier to the effectiveness of carrying out an investigation or review.
In cases with mixed languages contained in the evidence one, of the challenges faced by legal teams is to predict how many lawyers with extra linguistic talents are required and for how long. Advanced technologies, which can analyse the content of a document population, are now being put to good use in this area. Essentially, documents can be read by a computer which can identify the languages contained in them and build an index categorising the documents by language. This means that lawyers know exactly what languages they must deal with and in what proportions at the start of a case, rather than later on when it might be too late to ‘ramp up’ their team (and costs).Technology is also being used to temper the cost of translating evidence.
The task of committing human resource to translating every ‘foreign language’ document can produce disappointing results when the translation reveals a ‘spam’ email with no relevance to the case. Different techniques have been adopted, each carrying the risk of missing important data, but now some lawyers are reaping the benefits of machine translation. At a fraction of the cost of employing human translators – in a fraction of the time they would spend – thousands of documents can be put through a translation process to establish what the documents might actually say. Although machine translations are likely to be fraught with imperfections – loss of meaning, inaccuracy, etc – the advantages are that lawyers can quickly search translated text to find the most important-looking documents first. By playing to the strengths of technology, legal teams are reaching higher levels of efficiency within acceptable cost boundaries.
Best practices in working with multilingual evidence
While technologies such these are incredibly useful, investigators should, as always, be mindful of the risk of putting too much faith in technology. Here are some best practice tips for getting the most out of what is available:
- Make sure that your chosen technology is capable of handling the languages you need to review – some applications may display non-English characters as squares or other symbols.
- It is not sufficient to know that an application “supports non-English content” – ask what that means and find out whether it meets your requirements.
- Ask whether keyword search tools are intelligent enough to recognise different expressions of words and sentences – in many languages, words are not broken using blank spaces, whole sentences are expressed using one or two symbols and words can be arranged in different directions.
- Find out how metadata containing non-English characters is preserved.
- Validate the accuracy of any electronic translations, particularly against evidence you deem to be important. If necessary, modify your searches to capture any misconstrued terms.
Planning a multinational exercise
In international legal matters in particular, thoughtful planning early on can have a real impact on the cost and success of working with the evidence. By carrying out an early analysis of the potentially applicable laws, lawyers may avoid difficult and expensive legal hurdles later in the exercise. Similarly, it is worthwhile giving careful consideration to the form and nature of communications with those who control the evidence. It is also important, though, that members of the legal team understand and take full advantage of the benefits that technology can offer, particularly with respect to multilingual evidence. No matter the (type of) matter, a little bit of planning can make a lot of difference.
Sue Knox is a Legal Consultant at Kroll Ontrack and works out of our London office. Rob Jones is also a Legal Consultant working out of our London office.
Disclaimer
This document is neither designed nor intended to provide legal or other professional advice but is intended merely to be a starting point for research and information on the subject of legal technology. While every attempt has been made to ensure accuracy of this information, no responsibility can be accepted for errors or omissions. Recipients of information or services provided by Kroll Ontrack shall maintain full, professional, and direct responsibility to their clients for any information or services rendered by Kroll Ontrack.
Copyright 2007 Kroll Ontrack, Inc & Kroll Ontrack Legal Technologies Ltd.
