An Overview of Multilingual E-Discovery Considerations
Regina Jytyla, Esq., Kroll Ontrack
Globalisation has heightened the challenges of discovering computer evidence in countries around the world stored in a plethora of languages. American lawsuits often involve computer-based evidence only available abroad or in another language. For example, a New York judge recently compelled a French bank to produce documents to American victims of a terrorist attack in Israel in the Strauss v. Credit Lyonnais case.
The United States (US) legal community is acutely aware that US law holds lawyers responsible for litigation without borders and discovery without language barriers. A legal team that familiarises itself with the legal and technological issues surrounding multilingual e-discovery will be prepared to surmount language barriers that would otherwise bar their path to effective litigation.
Legal and technical considerations arise during each stage of the multilingual e-discovery process: data collection, filtering and processing, review, and production.
Data Collection
Several practical considerations arise when collecting multilingual data. First, it is important to identify as early as possible where the data you need to collect is located; in many cases, the data is scattered throughout several countries. For each location, you may need a separate plan for gathering the data. Second, you will need to transport your collection team to the data. Be sure to send only qualified and experienced collection technicians because thorough and defensible collection is vitally important. Consider utilising qualified local collection experts, if available, who understand the legal contours and local peculiarities of the area. Finally, certain collection tools commonly used for electronic English-language data collection do not support other languages. You must ensure that your collection tools support any languages or character sets you might encounter.
Moreover, collecting data in other countries frequently raises legal roadblocks. For example, the European Union (EU) and many Asian countries have strict data privacy laws that limit transportation of data. Legal teams should confer with local legal counsel to fully identify data transfer rules, privacy regulations, and jurisdictional issues specific to the data’s location before deploying a collection team. Attorneys should also familiarise themselves with the safe harbour agreement between the EU and the US, which generally allows US organisations to transport personal data outside the EU upon certification to the US Department of Commerce that they will provide adequate privacy protections.
Data Filtering & Processing
Legal teams are faced with the challenge of filtering and processing multilingual data that their computer systems can seldom read; character coding allows a computer system to recognise and display language characters (e.g., “a,” “詞” or “あ”). There are two main methods used to encode data - code pages and Unicode. Various code pages generate various language characters using the same underlying data. Characters that are not recognised by a particular code page are displayed as a question mark, square box, or other substitute character. By contrast, Unicode is a standard agreed to by computer hardware and software makers where each character in nearly every possible language is assigned a number.
Many e-discovery service providers tout their “Unicode compliance.” However, “Unicode compliance” merely means that a computer system can recognise Unicode characters; it does not mean that a system can filter Unicode data, process Unicode data, allow full search and sort capabilities of Unicode data, or recognise non-Unicode language characters. Because non-Unicode language characters are still prominent, your chosen e-discovery solution should support both Unicode and common code pages for non-Unicode language characters. Also, in the case of certain Asian languages that do not use spaces to distinguish words and sentences, ensure that the e-discovery solution you select is able to parse the language data into words and sentences to filter and search - a process known as tokenisation.
Document Review
After filtering electronic documents, the documents remain in their native language. A legal team in an English speaking jurisdiction has the option of using native speaking attorneys to review the documents, translating the documents into English for review by English speaking attorneys, or using a hybrid of these methods. As a general rule, using a native speaker is more accurate than translation, but is also more expensive. Moreover, human translation is generally more accurate than computer translation, but likewise more costly.
When deciding on which review method to utilise, the prudent attorney should consider the importance and the volume of the multilingual documents that need to be reviewed. Review by native speaking attorneys or human translation may not be possible within discovery deadlines, financially feasible, or necessary. On the other hand, legal teams should take reasonable precautions during review to avoid inadvertently disclosing privileged materials, which may necessitate more costly review options in some situations.
Document Production
The key to successful production is to reach early agreement with your opponent regarding multilingual production issues. For example, parties must agree to either produce multilingual documents in their native language, English, or both. Moreover, parties should agree on production format, ordering, and sequencing; multilingual documents can be organised for production solely by custodian, irrespective of the document’s primary language, or can be further organised by both custodian and language. In US jurisdictions, the ideal time to discuss and reach an agreement on multilingual e-discovery production options is during a Rule 26(f) conference. Early party consensus on production language, format, ordering, and sequencing is crucial to developing your discovery plan and may avoid costly disputes and repeating tasks later in litigation.
In conclusion, a legal team can avoid pitfalls and leverage opportunities in multilingual e-discovery by planning ahead for the inevitable. A legal team should familiarise itself with the legal and technical aspects of the process as outlined in this article and should also consider partnering with an experienced e-discovery service provider that possesses the technological tools and expertise necessary to navigate the waters of multilingual e-discovery when involved in complex litigation, investigations, or compliance matters.
To learn more about these and other legal and technical considerations raised in multilingual e-discovery cases, you can download a comprehensive whitepaper entitled, “Multilingual e-Disclosure: Options, Obstacles and Opportunities” at: http://www.krollontrack.co.uk/languages/.
Regina Jytyla, Esq. is a Staff Attorney at Kroll Ontrack Legal Tehnologies in Minneapolis.
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.
