foreign document examinations

Foreign Document Examinations

What Firms and Companies need for the successful production and examination of foreign

records for discovery

Foreign documents being brought into US courts raises several problems for both the companies and the firms representing these companies.o What is relevant? What terms?o Who and what is privileged? Are there entire company

divisions or sections are that privileged?o Who should we hire to examine these documents, translators

or bilingual attorneys?o How should these temporary employees be managed?o Where and when should we let them work?

Foreign Documents

Discovery is can be burdensome, long, and difficult.o Most countries do not have discovery and may be surprised

that they have to turn over confidential information from their own files for a lawsuit in the United States.

o Discovery is expensive, especially when foreign languages are involved because of the need for either bilingual attorneys or translators, especially for difficult to learn languages.

o Appropriate management of temporary employees for this work is essential and necessary for cost effective and accurate work product.

o After determining the type of review and the number of relevant documents, be prepared for the review to take longer than expected.

The Review

Make sure that there are clear rules for relevancy. o Without clear rules, reviewers will use their own judgment. This

can be very good, however, may lead to inconsistent coding of the documents.

Get all the reviewers on the same page.o It can be very difficult to find multilingual attorneys, so make

sure that there are open paths of communication between the attorneys and the staff.

Relevant

What terms should be used?o Isolate and identify all terms prior to bringing on temporary

employees and circulate all the terms to them upon arrival for the project. Remember, if the search terms or protocols change during the project, a full review will have to RESTART for due diligence.

In the event that anyone questions a relevancy call, always err on the side of caution:

Code it relevant and allow a second review.

Relevant

Acquire a list of privileged personnel from the client, any attorneys from the firm and other possible intermediaries.o Without a list, the temporary employees will have to try to

figure out who is privileged wasting valuable time and money.

Create an inclusive privileged topic list. o This list is equally important for the temporary employees

because failure to indicate everything that may be privilege could lead to producing privileged documents.

Privilege

Internal rules for privilege should be clear and concise.o For example, a firm might wish that all the communications

from a specific division marked as privilege on the first review. This may include communications from people who are not privileged. This must be clearly stated and repeated because this can go against the nature of what attorneys think about privilege.

Privilege is very important and must be stated clearly and concisely so the information is

recorded accurately.

Privilege

There are differences pluses and minuses for both of these people as temporary employees.

So what is the best way to utilize these two groups?

Bilingual Attorneys v. Translators

Bilingual Attorneys v. TranslatorsPluses

Legal Knowledge Linguistic Ability

Bilingual Attorneys Knowledge of laws pertinent to

the issues. Ability to understand the meaning

of legal terms. May have knowledge of foreign

laws that could be useful in the cases.

Can work without a firms’ direct supervision because they are attorneys.

Not afraid to inform of information that is “bad”

Translators May not have knowledge about

the laws surrounding the issues and will have to learn.

May have different understanding about the legal terms if they differ from their home country

May only have knowledge of their home countries legal system, however, generally not.

Bilingual Attorneys v. TranslatorsMinuses

Linguistic Ability Legal Knowledge

Bilingual Attorneys Language ability may be at

conversational or business level, rather than 100% fluent.

Can be obstinate about translating every page exactly word for word thus slowing down a document completion rate.

Translators Top translators can be very

expensive and the client might not want to pay for a translator.

Translators may not want to tell the “bad news”.

Translators should be personally supervised because they, while performing work at the request of an attorney, may be in a juris-diction that requires an attorney.

Utilize both strengths combining legal knowledge with linguistic ability.o Employ both bilingual attorneys and translators to the utilize their strengths in a cost

effective manner.o Provide both groups with firm email to protect their work as attorney work product.o Have both teams create a glossary of terms in both English and the foreign language to

use for uniformity.o Find out the strengths of bilingual attorneys. In the current economy, many attorneys

are former associates who have specific skill sets that can be utilized for the benefit of the client.

o Make sure that both groups are communicating, especially bilingual attorneys, to ensure that they note the type of language that the translators are using for uniformity.

o Utilize specialty translators in the specific areas of law surrounding the case for the “local lingo”.

o For increased productivity, allow temporary employees to work remotely from a secured location. For example, after an employee has worked an eight hour day, allow them to spend time with their families and work from their house. This should happen after the employees have demonstrated appropriate work ethic and are found productive and accurate.

Bilingual Attorneys v. TranslatorsManaging the compromise

Managing The Teams

o Assign a project leader from either within the Firm or a Temporary Employee who can answer questions regarding the case and act as a liaison between the Firm attorneys and the Temporary Employees. This keeps temporary employees from just popping into offices for questions.

o Start the translators with documents that are highly important, obviously relevant and clearly not privileged.

o Start the bilingual attorneys with a review of all documents leaving areas for “summary translations” of relevant documents to indicate what the documents are, why they are relevant, who they are from and how they are relevant.

o Once a first review is finished, have the attorneys trade documents for a second review to verify the information. There may be new rules that were implemented and a quick second review can implement these rules without starting the entire review from the beginning.

o Have clear communication between both groups especially for questions about translation, but also to clear the air of tension.

o Create a team and mold teamwork. Remember the team is not working against each other, but for the client and against the opposing counsel and their foreign language specialists.


Managing the Teams

o Identify members of the team with experience on the software platform being used for the review to aid in searches. By inserting pertinent information into the database, searches can be performed on the software platform for specific sets of documents. Assigning a temporary employee to gather this information saves an associates’ time an can be utilized during depositions, trials and meetings to get information quickly and accurately.

o Personalities are tough, especially with attorneys who are generally Class A. While butting heads will happen, dominant personalities who consistently affront each other will cause team cohesion to fail. This can be prevented by designating a team leader for specific tasks and rotating this leader among the team members for each task.

o Make sure that the internet is available for the bilingual attorneys and translators. The internet is a valuable tool because of the accurate and useful online dictionaries. In certain cases, specific language packs have to be downloaded to a computer to write in a specific language. This cannot be done without internet access.


Utilize a project manager to free up an associates time and helps create a chain of command.

Use both word-for-word translators and bilingual attorneys to be cost effective without sacrificing accuracy.

Maintain open lines of communication open to prevent possible conflicts.

Allow remote access for increased productivity. Capitalize on bilingual attorney knowledge and previous experience. Make the most of each persons skill sets to maximize teamwork. Permit internet access for translation and research, especially in

highly involved scientific cases. Decrease the number of bilingual attorneys and translators as the

project gets closer to trial. Train temporary employees in the use of search terms in order to

find information quickly from the document database.

Conclusions