Today’s post is all about the real-world application of machine translation. Our guest contributor, Joshua Gilliland, Esq. of Bow Tie Law, shares his experience reviewing foreign language in ediscovery.
The first foreign language lawsuit I worked on as an attorney was an international price fixing case with defendants in Japan and Germany. Boxes of printed discovery were produced in Japanese. This raised serious issues of how to find documents that supported our causes of action and prepare for depositions. Fast forward to present day: parties might not be producing boxes of paper—in lawsuits with products made in the United States but with overseas parent companies—and instead hard drives of data in multiple languages.
International business raises a complex question for litigators: how do you review discovery in a different language? From cases with deposition notices, to third-party requests for production, to products liability cases for cars, parties can easily find themselves in discovery with documents in both English and a different language.
Discovery productions can run the gamut from a deponent producing over 2,100 records mostly in Japanese before a deposition; to a Plaintiff in an auto-recall case producing 1.79 million pages of discovery, with 84,000 documents in Japanese.1
Case law has held that translations of foreign languages by a party during document review are ordinary work product, because bilingual reviewing attorneys would determine whether a document was “hot,” and second tier attorneys would decide whether to translate the document. As such, any documents translated to English under the direction of an attorney would show what documents the producing party thought were “important” to the case.2
Lawyers conducting review in Everlaw do not need to wade into fights with opposing counsel on whether translations were done in the ordinary course of business or for litigation, or if there is substantial need or undue hardship in requiring translations. Everlaw’s review platform can search for, identify, and translate 50+ languages with Google’s enterprise translation API.
Using the foreign language search feature is easy:
- Enable the Language Tools on the case
- Construct searches by adding the “Language” query in the search builder
Two languages can be searched simultaneously by adding a query with two Languages, such as Japanese and English.
Search hits for documents with Japanese will have a “Language” tab under the PDF or text view of the document. This tab will only show up for docs with foreign languages contained. Any text with foreign language will be automatically highlighted. You can then choose to translate that highlighted text with a simple click.
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Preparing for Deposition
Consider the case where a deponent produced approximately 2,000 records in Japanese. Lawyers preparing for that deposition could add those records to Everlaw, enable the Japanese foreign language translation, and begin to prepare their deposition outline.
Searches could be constructed based on the request for production in the deposition notice. For example, if the request for production was for “All communications regarding design specifications for the Wave Motion Engine,” the search could be constructed as follows:
The attorney can prepare their deposition outline with Storybuilder. As the attorney reviews the search hits, individual documents can be added to a deposition outline.
Attorneys can prepare their foundational questions about specific documents in Storybuilder.
This workflow can be repeated throughout the review for any documents the attorney wishes to use in the deposition.
There could be other considerations in preparing for a deposition with a foreign language, such as the necessity for a translator if the deponent does not speak English. Moreover, a Project could be created for a translator, so they can be familiar with the documents prior to the deposition.
Document Review Strategy for ESI in Multiple Languages
There is a universal language in document review: What are you trying to prove? What is necessary to tell your story to the jury? What is the discovery in the case?
Consider a hypothetical case where the plaintiffs have brought a design defect case for overheating VF-1 Valkyries. After the Defendant produces discovery, the Plaintiffs could create review Assignments for attorneys based on the following search:
The “hits” in the results table include the percentage of a specific language within each record for review. Search hits can then be assigned to reviewing attorneys based on the percentage of languages within the results, if bilingual attorneys are performing the review. This process can be repeated for communications and other search constructions for document review to be strategic to maximize efficiency.
Foreign language documents in the past used to require specialized review teams of bilingual attorneys. While there are cases where a bilingual review team would be an advantage, there are cases where it is no longer a requirement thanks to machine translation technology.
1In re Lithium Ion Batteries Antitrust Litig. Case No. 13-md-02420-YGR (DMR) (N.D. Cal., 2015); Nissan N. Am. v. Johnson Elec. N. Am., 2011 U.S. Dist. LEXIS 16022 (E.D. Mich. Feb. 17, 2011).
2See, Shionogi & Co. v. Intermune Inc. No. C -12-03495 EDL (N.D. Cal., Dec. 5 2012).