In The Hitchhiker’s Guide to the Galaxy, hapless Earthling Arthur Dent jams a Babel fish in his ear that gives him the ability to instantly understand anything in any language around the universe. If only global e-discovery matters also came with their own speech decoder that could conveniently cross the language divide.
Many organizations suffer the risk of global regulatory enforcement actions, including anti-bribery and anti-corruption. In particular, the risk of hefty fines under the Foreign Corrupt Practices Act (FCPA) looms large. They also face the extensive costs of responding to regulatory inquiries that require them to collect, review, and produce data from disparate and nontraditional data sources, such as travel and expense reports, chat messages, and social media.
Not only must counsel scrutinize these unusual forms of data for often subtle patterns that indicate impermissible behavior; they must also contend with the complex issues that arise with the review of foreign documents. For instance, although the translation itself may be straightforward, the context, colloquialisms, and textspeak can make it almost impossible to discern the true meaning of documents, much less locate them.
An even thornier issue involves data privacy. Many foreign countries require e-discovery practitioners to navigate a complex web of privacy restrictions that limit access to and the transfer of data that includes personally identifying information, payment card information, medical records, HIPAA, and geolocation data. Often, this review must be performed inside a country, meaning that a panoply of discovery services must be conducted in place to avoid running afoul of the law, including all forms of transferring and “processing” data, including extracting and manipulating metadata.
Corporate Compliance Insights’ recent article on this topic highlights how corporations and their outside counsel can better anticipate—and address—these challenges. Here are tips from the article itself:
Be smart about the technology you choose.
“The technology you choose can save significant costs when applied appropriately to foreign language documents and simplify the process. Legal teams should use a review platform with advanced features and analytical capabilities for addressing foreign languages, and understand the capabilities that the selected platform has for the languages. For Asian languages in particular, it is important to confirm how the platform treats non-English characters during the processing, search and analytics phase of the review. Review platforms that can analyze concepts and relationships in specific languages can quickly provide insight into who is speaking with whom and identify emerging behavioral patterns that may be indicative of wrongdoing. Predictive analytics is another useful tool, as it can suggest categories of documents to review. Similarly, machine translation can render a broad translation of documents that will help with categorizing potentially relevant document sets. Both of these methods can yield significant time and cost savings by streamlining the process.
It is also critical to understand which tools to apply to native electronic documents, and which to apply to hard copy documents that have been digitized through imaging. Concept analysis, predictive coding and machine translation are best suited to native electronic since these technologies take advantage of the available metadata and full text of electronic files. Generally, digitized hard copy documents are best reviewed in the specific foreign language rather than utilizing machine translation, since the quality of automated translation results rely heavily on the quality of the optical character recognition (OCR) generated from these documents.”
Engage experienced professionals.
“Many problems that arise in a foreign language review and translation project are the result of a lack of training and experience. It is important to involve professionals who are experienced in the compliance and regulatory field, as well as fluent in the particular language. (ALTA Language Services is the standard in testing language proficiency levels in the legal review world.) Professionals with both native knowledge of the language and industry knowledge of the specific case or familiarity with FCPA and regulatory laws can also provide insight and assist with development and clarification of search terms and syntax, as well as provide education on terms of art, regional dialects, geographic-specific business terms, and conversational quirks—including formal, proper and casual.
Professionals should also be able to verify and attest to the quality of the translated work with a Certificate of Accuracy (COA). Since this type of certification can be requested by the Department of Justice, Securities and Exchange Commission and some courts, engaging with translators with prior experience translating and certifying work for large government or international monitoring bodies such as the DOJ, Central Intelligence Agency, Department of Homeland Security, The Hague and the United Nations is ideal.”
Proactively monitor your data for compliance risks.
“Many companies that have violated the FCPA, or those that may be at risk due to rapidly expanding business operations outside of the U.S., engage in on-going compliance monitoring. Much like document review, large amounts of data can be filtered to the important facts. Such activities, whether conducted by an internal team or a third-party vendor, help flag potential illegal activity, identify isolated incidents and create alerts to systematic issues that will need to be remediated.”
By planning ahead, foreign language review doesn’t need to get lost in translation.