Foreign language document reviews, and projects outside the U.S. — wrap-up of the ILSLC

ILSLC (Part 2:  wrap-up)

We want to finish our review of last week’s International Legal Support Leaders Conference (ILSLC) with a focus on U.S. foreign language document reviews and document reviews outside the U.S. (for our others posts on the ILSLC click here).

As we have indicated in previous posts the last few months, foreign language document reviews have dominated the U.S. contract attorney market due to the continuing increase in FCPA cases which explains the stream of work from firms such as Baker & McKenzie and Kirkland & Ellis which have strong FCPA practices, and now more work from Arnold & Porter which recently added a major FCPA partner.  Add to this mix the continuing stream of patent litigation and cross-border M&A work such as the Sanofi-Aventis/Bristol-Meyers merger (click here) and cross-border litigation such as the Societe Generale class actions (click here).  

And an even bigger factor:   other countries are starting to enforce laws similar to the FCPA, and international law enforcement agencies are cooperating more than ever before (click here). 

Another ingredient to the mix: the step-up in DG COMP investigations in Europe (click here, here and here). 

Result?  Lots of foreign language work for contract attorneys, and lots of work for e-discovery companies that handle foreign language document collection, processing and review.   As we indicated in our “Trends” review last December (click here),  staffing agencies still do the larger percentage of foreign language document review.  But e-discovery companies have agressively moved into this market by teaming with staffing agencies.   The IT/litigation support teams at law firms we have visited continue to tell us (as they did in December when we made our rounds) that it makes much more sense to have the e-discovery companies also handle the “back end” — the review itself — since the evolution of the technology makes it a natural progression.    Why use two vendors when you can use one?  This has impacted the contract attorney job market as more and more e-discovery companies build out their staffing relationships and staffing units.

And one competitive “game changer” might be the entry of Merrill Brink (a division of Merrill Corp.) into the document review market.  Contract atorneys know them because of their e-discovery/case management software  Lextranet.   It is one of the largest language translation/interpretation company in the U.S. and already offers an array of services to almost every AmJur 100 firm such as deposition services, trial prep services, large case management, etc.  But as several law firms told us, their extensive legal translation and interpretation services for international litigation, intellectual property, patents, and mergers and acquisitions – the “biggies” for the contract attorney industry – make the actual staffing of document reviews a natural fit.    We hope to meet with them in the coming weeks and get more details.

U.S. foreign language document reviews

At a seminar concerning the foreign language component of e-discovery and document review, we heard from experts Lillian Clementi, Managing Principal of Lingua Legal; Todd Haley, Vice President of E-Discovery at ePIC; and Conrad Jacoby, founder of efficientEDD as they expounded on the “how tos” of these reviews.

As Clementi and Haley pointed out, the common refer­ence point is Unicode — the buzz word on the lips of every e-discovery provider and in seemingly every press release of every litigation software and service provider.

We’ll skip the “tech talk” and just tell you that:

• Unicode is the de facto standard for translating characters and symbols of written language — both English and other languages — into numerical values for processing on computers.

•Software that doesn’t support Unicode may work on Unicode documents in English, but it most likely won’t work on documents in other languages.

•Using noncompliant software on Unicode documents may cause incorrect display of non-Latin characters and sometimes data-file corruption.

That last point is crucial.  If, for example, Japanese characters cause the review tool to omit documents from search results or improperly display them during a privilege review, an inadvertent disclosure could result.  Further, a noncompliant tool can mangle Unicode characters when exporting documents for production by substituting symbols for unrecognized characters because the software didn’t know how to handle them.

So, as the panelists emphasized, it is prudent to inquire about the specific Unicode capabilities of your software vendors and demand similar due diligence from service providers.

Is Unicode compliance the same thing as universal language support?  No.  Unicode compliance means only that the software has the ability to handle documents in languages that include characters beyond the A-Z scheme used in the Latin alphabet. The complexities of searching and reviewing a multi­lingual document collection are numerous and may require advanced functionality offered in very few of the available litigation tools.

Here are the other buzzwords/concepts to know:

Compounding: Some languages, including German, Dutch, Swedish and Finnish, use compound nouns that may complicate searching. For example, without the proper search syntax, a search based on the German word Kontaktlinse (contact lens) would miss a document that included the word Kontaktlinsenverträglich­keitstest (contact lens compatibility test).  Specialized tools exist to facilitate searching individual components of compound nouns, but few litigation support tools have incorporated such technology.

Tokenization: To facilitate rapid searching on large document collections, search tools use a tokenization process to identify discrete words and add them to a searchable index. For most Asian lan­guages — which use very little punctuation, don’t insert spaces between all words, and can have the meaning of characters change based on context —the process for breaking down documents into individual words can be very complex and require language-specific dictionaries. Again, few litigation tools are sophisticated enough to accommodate the idiosyncrasies of some languages.

Canonicalization: In most languages, there are multiple ways to express a single concept. Most search engines are good at handling the most common form of this in English, the synonym. Other languages, however, have more complex systems for representing concepts in multiple ways. For example, the meaning behind a Japanese ideogram can also be “spelled out” in one of several different kana character sets or transliterated phonetically into the Latin alphabet using the romaji system.  Problems also arise from languages where nouns can take on prefixes or suffixes based on the context in which they are used. For example, in Arabic the word for “my apple” and “your apple” are represented by distinctly different canonical forms with the same fundamental meaning.

And a big issue: what role does automated document translation play in discovery?  It is not an “either/or” situation.  You need a blended approach.  All the panelists recommended using search experts fluent in the lan­guages (such as Clementi’s firm Lingua Legal) present in the document collection.  It is reasonable for certain phases of the process such as creating search-term lists for culling, reviewing documents, and final quality control. But having a translator “shadowing” everyone on the litigation team to translate every search isn’t always practical, especially if more than one foreign language is involved.

Machine translation can help. Although notoriously inaccurate compared to a manual process, less-expensive machine translation still can assist litigators in situations where it is impractical to have a human translator standing at the ready. Although it is not advisable to conclude definitively that there are no relevant documents based on only a search of machine-translated versions of documents, it is quite reasonable to use automated translations to make first-pass culling decisions.

Overall, in dealing with foreign languages in discovery, it is important to take a proactive stance, be knowledgeable about the complexities, and ask the right questions of vendors early in the process to avoid costly mistakes in the discovery management process.

Litigation without borders: global e-discovery

And finally, an issue near and dear to our heart:  document reviews in Europe and Asia.  The trends we discussed at the beginning of this post — continuing increase in FCPA cases, continuing stream of patent litigation and cross-border M&A work, other countries are starting to enforce laws similar to the FCPA — has led to a surge in document reviews in Europe and provided work for European based Posse List members through such companies as Project Counsel,  and now also Asia (a member of The Posse List leaves for Asia this weekend as part of a trade delegation on Asian e-discovery).   It is also the reason why law firms and corporations have begun asking staffing agencies and e-discovery companies if they can provide “enterprise wide” e-discovery solutions: managing and/or staffing projects for a law firm or corporation in any of its offices across the globe.  In our trip to NYC this week that was the “new big thing” discussed at all the law firms we met.

An ILSLC panel focused on managing cross-border discovery was composed of three heavy-weights in this part of the industry:  Scott Merrick, International Marketing Director of LDM Global; Nigel Murray, Managing Director of Trilantic; and John Tredennick, CEO of Catalyst. 

If you operate internationally, you must be cognizant not only of a patchwork of laws and regulations-many of which could conflict-but also of cultural differences that affect your response to requests for electronic information.  The initial stage in any litigation or regulatory effort is to ensure preservation of relevant materials. But an international scope makes this far more complicated than just issuing a directive to employees to stop deleting e-mails or drafted documents. You need to know where information is located, how it is stored, when it is backed up, and whether backups are rotated or destroyed. Automatic deletion or rotation policies mean that if you do nothing, you may lose files that are subject to a regulatory or litigation request.

Data collection also is far more complicated in an international context than in a purely domestic one. Local laws may prohibit an employer from searching employee e-mail files. As a cultural matter, most Americans are accustomed to the idea that an employee’s computer and e-mail account belong to the employer. Outside of the U.S., the cultural understanding is frequently just the opposite: An employee’s computer and e-mail account are considered private, and it may be a criminal offense to invade that privacy. Collection of data outside the U.S. may be seen as coercion by an employer, and it may lead to labor union grievances or complaints.

Once the information is collected, getting it reviewed and produced to a U.S. regulator or litigant is also no simple matter.  Data privacy and blocking statutes in Europe, Asia and South America may forbid the transfer of personal data outside of their borders to an “unprotected” jurisdiction like the United States-and personal data include names, e-mail addresses and office phone numbers. Indeed, special procedures may be required before individuals outside a company-including the company’s outside counsel-may review the data.  And local laws may dictate that only data specifically responsive to a request may be exported, requiring counsel to review materials locally rather than shipping them to the U.S. to one centralized location, as is normally done in U.S. litigation

Do not expect, however, any sympathy from U.S. regulators or plaintiffs’ lawyers.  U.S. regulators are skeptical of data protection laws and may take the view that international companies hide behind them to avoid cooperating with the regulators’ investigations. U.S. courts may not be more understanding. The Supreme Court has held that U.S. discovery rules presumptively apply in civil litigation involving an international company, even if producing data in response to a discovery request would be unlawful in the international company’s host jurisdiction.

These are some of the issues that will arise when an international company has to manage a conflict. How should you resolve these issues and to whom should you turn to get the process started?   You need to partner with a local vendor who understands any local legal requirements and has the technical ability to help you meet them. Alternatively, in selecting your forensic technology vendor, you should consider whether it has an established presence in the foreign country involved in the crisis.   For instance, in Europe, Trilantic is the “go to” company with its pan-European operations base.

For instance, if you need to collect e-mail from your France-based sales and marketing staff in order to respond to the SEC inquiry, you will need to ensure you do not violate France’s data protection law in doing so. This may mean engaging a local law firm to analyze any intra-company agreements between your U.S.-based parent and the French subsidiary to learn what foreign data transfers may already be permitted. In addition, you may need to engage an EU-based forensic technology vendor to host any French e-mails you collect in a location inside the European Union until you determine they can be transferred to the SEC in the United States.  Alternatively, some U.S.-based forensic technology vendors are “safe harbor” companies. This means the U.S. Department of Commerce has certified that they meet EU data protection requirements and would be able receive transfers of data without violating French law. This would allow you to maintain and analyze any data in the United States before turning it over to the SEC.

And, assume nothing and document everything.  For better or for worse, U.S.-style litigation and internal investigations are largely alien to non-U.S. organizations.   Most likely foreign managers have never before participated in a forensic collection.  Preserve and document the chain of custody.

For a nice overview of the European issues, Ken Rashbaum (a Director at Fios Consulting) has posted a piece giving you background on the Sedona Conference framework for analysis of cross-border discovery and the Article 29 Working Party of the European Commission (click here).   Ken is a major presenter at The Sedona Conference on Cross-Border eDiscovery & Data Privacy in Barcelona, Spain this June 10th and 11th.  The Posse List is attending that conference and we will be posting reports.