The OLP, the Organization of Legal Professionals, has a short article in its (first?) August Newsletter, the OLP Update, entitled “Approaches For Triaging Foreign Language Documents” and signed by Joseph Thorpe, one of the OLP’s board of Governors.
Mr. Thorpe identifies 4 strategies to approach foreign language documents review:
- Asking client to provide staff for foreign language document review and translation support
- Using MT (machine translation) to Translate All of the Documents
- Abstracts
- Human Translation
While I am a big fan of asking employees to find the relevant documents, as we use to do in the paper age, even if some courts (with which I beg to differ) are now saying it is inappropriate, it is often unrealistic to use clients’ employees to search and review documents for relevancy. This is particularly the case when dealing with higher management and specialized employees or professionals given their limited availabilities and the relative cost of having them performed what is often seen as more clerical work.
To me, the only way to ensure a defendable document review is to outsource it to bi- and multilingual reviewers who are fluent in English and can perform the review of English documents to get a good understanding of the case and the nature of the documents. They can then most efficiently complete the review of the documents in the other languages while ensuring a standard of quality in the overall review. These reviewers can normally be found for almost the same price as the English only reviewers and sometimes even for less, depending on the jurisdiction.
For instance, in Quebec, most lawyers are bilingual (English and French) and a large number speak a third or forth language, e.g. Spanish, Italian, Portuguese, German, Hebrew, Arabic, Mandarin, Russian, etc. While Quebec is a civil law jurisdiction, many lawyers are also common lawyers since most universities now offer what is known as a National program where you receive and LL.B in civil and common law. The cost of these reviewers is normally between $50 and $125 depending on the year of call, the jurisdiction(s) in which the lawyers are called, their experience and the number of languages they speak.
With respect to the use of MT, except when there is a clear case for proportionality, I have no confidence whatsoever in the technology. It is far from being ready for prime time. I must admit of using the BabelFish and Google Translate of this world to get a sense of what a Chinese website says but I would never rely on anything similar for document review in the course of a litigation or investigation. In fact, I don’t understand how that approach can be defended while, at the other extreme, some judges state that key words must be defined by experts… How can a machine properly translate slang, idiomatic expression, internal codes used by employees, etc.? How can it pick up on the subtlety of a language and differentiate humor and sarcasm?
Furthermore and perhaps most importantly, that approach requires a translation of all documents, including irrelevant ones, plus a review of all of them, thereby generating unacceptable costs and delays. The same arguments apply to abstract and translation.
Sadly enough the OLP does not allow its readers to comment, hence this post.
Talk about a preservation obligation!!
“What does metadata mean?” is a question we get every day and which is answered by looking at electronic documents properties and explaining different types of metadata. We wish to thank United States Magistrate Judge Frank Maas for sharing his explanations in 
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