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
  • Post edited MT
• 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.

Ledjit minds the gap. And bridges it!

“First, high storage costs. Studies show that storage costs continue to skyrocket as over retention has created an environment where it is now 1,500 times more expensive to review data than it is to store it. And it is not just the raw cost of tape stock and hard disks, but the higher costs of managing such massive stores. Second, backup windows are bursting at the seams. It is becoming increasingly common to hear of weekend backups taking more than a single weekend. Recovery times are even worse. The time it takes to restore such massive backups will bring any disaster recovery program to its knees. Finally, with the massive amounts of information stored on difficult-to-access backup tapes, eDiscovery has become a lengthy, inefficient and costly exercise.”

While these consequences are serious, so are the short-to-middle-terms benefits of the remedy. It would be a missed opportunity not to remind you that Ledjit is Bridging the gap between IT and the law!

“that really means understanding the technology and not only understanding the process of e-discovery, which is what we see in the market right now. Lawyers know the Sedona Principles, they know what they need to do next but they don’t know how to do it. So that’s a set of skills I think needs to be developed in the Canadian market.”

7 Steps for Legal Holds of ESI and Other Documents is described as a practical book, an “how-to guide describing step-by-step a best practice process for identifying trigger events and implementing a litigation hold. It provides a straightforward description of why the law requires preservation, the scope of preservation, and practical tips on how to preserve records in an acceptable manner.”

The book covers topics such as:

• What Is a Legal Hold?
• Different Types of Holds
• Preservation Orders
• Legally Defensible Process
• Difficult Legal Hold Issues
• Assessing Readiness
• Identifying Trigger Events
• Statutory or Regulatory Obligations to Preserve
• Duty Arising from Potential or Threatened Litigation or Investigation
• Duty Created by Preservation Letters from Opposing Counsel or Agency
• Duty Arising from Service of a Complaint, Civil Discovery Statutes, Discovery Requests, and Court Orders
• Legal Hold Scoping
• Legal Hold Implementation Methodology
• Legal Hold Enforcement
• Lifting a Legal Hold

This legal hold bible also includes a self-analysis checklist, a flow chart describing the process for implementing a litigation hold and case law citations supporting this best practices process.

“By testing the data (both what is selected and what is not selected), one can mitigate the risk of systematically missing data and create documentation regarding the reasonableness of the process, while at the same time reduce the amount of money wasted on processing and reviewing irrelevant documents.”

Its pertinence flows from the understanding that discovery is a global process, and that while costs can be shift further away, it may be cost efficient to shift them in the first steps of the process: the iterative approach to selection criteria may well be such an example.

“[show that steps have been taken] to audit the policy and measure compliance. It’s not just a piece of paper that nobody has read. Document retention is becoming more important because of the links between that policy and the cost containment issues on e-discovery. So when you can make a business case how it is going to save the company money to have a very efficient document retention policy, there may be some more resources thrown at that issue than in the past where it was a nice thing to do but what is the benefit in doing that.”

On the cultural shift need to migrate from crisis mode to planning mode, Justice Cambell shares his thoughts on how discovery law in Canada must develop differently than in the United States :

“I think the one thing that Canadian lawyers are attuned to is our obligation to reduce relevant documents, whereas in the U.S., their rule is you only produce what you are asked for. And I think that is what drives a lot of their confrontation… So the big knock on what we’re all doing is, are we destroying civil litigation? We have invented industries to take care of the growing amount of information that is available. It does have to be controlled and tamed, and I think I go back where Melanie started, with the meet and confer, changing the culture right at the beginning, so people don’t feel that it is so adversarial. […] Big task, but hopefully we’ll get there.”

1. The Defendants, Transocean Offshore Deepwater Drilling, Inc., Deepwater Horizon, BP Products North America, Inc., Halliburton Energy Services, Cameron International Corporation d/b/a Cameron Systems Corporation and MI SWACO, through their officers, agents, employees, and subcontractors, are ordered:
(a) To reasonably refrain and resist from any changing, alteration and/or destruction of any documents pertaining to the April 20, 2010 explosion or subsequent efforts expended in connection with such event, including all infonnation stored, held or maintained in electronic format or via the internet; and to take immediate action to prevent the automatic andlor systematic programmed deletion or discarding of such documents.
(b) To reasonably refrain and resist from any changing, alteration and/or destruction of any and all tools, instrumentalitics, and/or devices which may have been used by workers, in any capacity, as well as any work authorizations or other documents indicating status of work at the time of the event in question as well as any and all physical evidence of any kind in any way connected with the accident and/or accident scene in question.

Read all the protective order [PDF].

How will they preserve the oil and the fire?!

1. Types of Metadata
Metadata, frequently referred to as “data about data,” is electronically-stored evidence that describes the “history, tracking, or management of an electronic document.” It includes the “hidden text, formatting codes, formulae, and other information associated” with an electronic document. The Sedona Principles-Second Edition: Best Practices Recommendations and Principles for Addressing Electronic Document Production Cmt. 12a (Sedona Conference Working Group Series 2007), http://www.thesedonaconference.org/content/miscFiles/TSC_PRINCP_2nd_ed_607.pdf (“Sedona Principles 2d” ); see also Autotech Techs. Ltd. P’Ship v. Automationdirect.com, Inc., 248 F.R.D. 556, 557 n. 1 (N.D.Ill.2008) (Metadata includes “all of the contextual, processing, and use information needed to identify and certify the scope, authenticity, and integrity of active or archival electronic information or records”). Although metadata often is lumped into one generic category, there are at least several distinct types, including substantive (or application) metadata, system metadata, and embedded metadata. Sedona Principles 2d Cmt. 12a; see United States District Court for the District of Maryland, Suggested Protocol for Discovery of Electronically Stored Information 25-28, http://www.mdd.uscourts.gov/news/news/ESIProtocol.pdf (“Md.Protocol” ).

a. Substantive Metadata
Substantive metadata, also known as application metadata, is “created as a function of the application software used to create the document or file” and reflects substantive changes made by the user. Sedona Principles 2d Cmt. 12a; Md. Protocol 26. This category of metadata reflects modifications to a document, such as prior edits or editorial comments, and includes data that instructs the computer how to display the fonts and spacing in a document. Sedona Principles 2d Cmt. 12a. Substantive metadata is embedded in the document it describes and remains with the document when it is moved or copied. Id. A working group in the District of Maryland has concluded that substantive metadata “need not be routinely produced” unless the requesting party shows good cause. Md. Protocol 26.

b. System Metadata
System metadata “reflects information created by the user or by the organization’s information management system.” Sedona Principles 2d Cmt. 12a. This data may not be embedded within the file it describes, but can usually be easily retrieved from whatever operating system is in use. See id. Examples of system metadata include data concerning “the author, date and time of creation, and the date a document was modified.” Md. Protocol 26. Courts have commented that most system (and substantive) metadata lacks evidentiary value because it is not relevant. See Mich. First Credit Union v. Cumis Ins. Soc’y, Inc., No. Civ. 05-74423, 2007 WL 4098213, at *2 (E.D.Mich. Nov.16, 2007); Ky. Speedway, LLC v. Nat’l Assoc. of Stock Car Auto Racing, No. Civ. 05-138, 2006 WL 5097354, at *8 (E.D.Ky. Dec.18, 2006); Wyeth v. Impax Labs., Inc., 248 F.R.D. 169, 170 (D.Del.2006). System metadata is relevant, however, if the authenticity of a document is questioned or if establishing “who received what information and when” is important to the claims or defenses of a party. See Hagenbuch v. 3B6 Sistemi Elettronici Industriali S.R.L., No. 04 Civ. 3109, 2006 WL 665005, at *3 (N.D.Ill. Mar.8, 2006). This type of metadata also makes electronic documents more functional because it significantly improves a party’s ability to access, search, and sort large numbers of documents efficiently. Sedona Principles 2d Cmt. 12a.

c. Embedded Metadata
Embedded metadata consists of “text, numbers, content, data, or other information *355 that is directly or indirectly inputted into a [n]ative [f]ile by a user and which is not typically visible to the user viewing the output display” of the native file. Md. Protocol 27. Examples include spreadsheet formulas, hidden columns, externally or internally linked files (such as sound files), hyperlinks, references and fields, and database information. Id. This type of metadata is often crucial to understanding an electronic document. For instance, a complicated spreadsheet may be difficult to comprehend without the ability to view the formulas underlying the output in each cell. For this reason, the District of Maryland working group concluded that embedded metadata is “generally discoverable” and “should be produced as a matter of course.” Id. at 27-28.