Global litigation is on the rise as organizations expand their reach into wider geographic and legal territories. Litigation cases often result in costly and lengthy legal procedures for all parties. Each case often generates huge volumes of discovery data and for litigation cases involving parties from more than one country, datasets can be in multiple languages, which increases turnaround time and complexity. The accurate, timely and cost effective translation of discovery data is a crucial part of the overall litigation process. Many law firms and corporate counsel encounter multilingual litigation and quality language providers play a vital role in the success of many global cases.
Growth in cross-border litigation
According to the 2016 Litigation Trends Annual Survey commissioned by Norton Rose Fulbright, there has been a significant increase, from 35% in 2015 to 41% in 2016, of respondents having to conduct cross-border discovery. Certain industries, such as banking and finance, experience high levels of cross-border litigation. Respondents to the annual survey discussed “…the costs and resource implications of discovery in litigation and how it was growing out of proportion to the benefits gained. As more discovery now has a cross-border element, this also creates more complexities.”
One area that is often overlooked at the start of a case is the sheer volume of litigation and discovery data that can be involved in each case. The collection of documents from multiple jurisdictions creates challenges as documents must be accurately translated, reviewed and then submitted for disclosure in the native language. Many legal parties are now turning to language detection, technology-assisted review and machine translation (MT) to reduce the high costs associated with discovery and translation in litigation. The Norton Rose Fulbright Survey 2017 stated that the proportion of respondents using technology-assisted review has increased from 57% in 2015 to 60% in 2016. Uptake in the United States is significantly higher with 66% using technology-assisted review.
The litigation process and translation
When legal teams begin a litigation case, they are often presented with high volumes of digital or scanned documentation. The English language documents are processed and managed first, with the legal team evaluating which data is important and whether it is relevant to the case being built. If there is foreign language data, the litigation team must first convert the data into a form of understandable and usable content and then decide whether it is relevant to the case.
Many teams approach this challenge by using any available in-house foreign language resources to complete document review. For larger datasets, legal teams will hire teams of contract attorneys or document reviewers, often at a high cost, to carry out first pass linear review. These document review and contract attorney teams assess the data and produce a subset of likely relevant documents, which are presented to the case team to determine importance during a second-pass review.
After the initial review, case teams decide which of the reviewed documents contain the most important information and have the potential to be utilized in an official capacity. Whether for a deposition, for a legal brief or as part of a trial or hearing, a certified level translation is required if the original is in another language. However, many litigation teams will wait to translate these documents until the very last minute before they are needed. When rushing certified translations, costs are often higher and quality is at a higher risk of being compromised. This can be a potential pitfall as some, if not all, of these documents can be pivotal to the case and an error in the translation can be damaging.
A much more measured approach is to address the foreign language aspect of the case at the very beginning of the document evaluation phase. Case teams will benefit greatly by partnering with a litigation language expert at the first hint of foreign language data in the litigation. The language experts will work as an extension of the case team and together the most efficient and cost effective foreign language management strategy can be developed. With a greater degree of oversight, not only will the overall cost of the litigation decrease, but the quality of translation will increase. With more predictability and foresight into the volumes and types of translations required, as well as a more suitable amount of time to complete the certified level translations, the case team will benefit from higher quality and cost efficient translations.
Technology-assisted translation in litigation
A technology-assisted translation framework is a solution that leverages leading MT technologies and is rapidly becoming fundamental to successfully managing the associated costs of global litigation.
Implementing translation tools into the litigation process enables case teams to conduct first-pass and second-pass review of foreign language originating data more rapidly and in parallel to English documents. This works by using subject matter and individual case specific data as the seed set to inform an otherwise untrained MT engine. The process creates more relevant translation output and results in a more actionable translation. Having relevant English documents enables first-pass review to be conducted by English-speaking reviewers as opposed to more expensive foreign-language counterparts. Additionally, second-pass review is possible with English speaking case teams, avoiding the need to incur human translation costs at this stage and reducing human translation requirements down to only those very important documents.
Using technology overcomes the challenges of complex discovery processes involving large volumes of multilingual data. Most law firms and corporations use ediscovery technology to host and manage litigation and discovery data. Translation tech solutions seamlessly integrate with popular ediscovery platforms to enable the secure movement of data between parties, and creates a more efficient workflow.
Imagine this scenario: a localization service provider (LSP) has delivered rapid technology-assisted translation to an international law firm managing a high profile litigation case involving multiple jurisdictions. The initial dataset contained multiple languages identified by the ediscovery processing and review platform. The deadline for ediscovery review and production to opposing counsel was seven days, which would have been impossible to achieve using only human translation. The LSP customized the MT engine specific to each language and data type, seeding the engine based on the subject matter. Once the MT solution was underway, the team realized that there were new language groups that had not been previously detected by the client’s review platform. Language detection technology identified more languages requiring translation.
The output for all languages was handed off to the ediscovery provider to load on to the review platform. English speaking reviewers were engaged to post-edit and review final output.
Using this framework to manage the high volumes of data enabled the client to meet the deadlines and avoid any court penalties or sanctions imposed by the judge. The combination of MT, ediscovery processing and review technology enabled the processing of huge amounts of word counts in multiple languages. Enabling English speaking contract attorneys, as opposed to foreign language speaking contract attorneys, at the first-pass review stage saved the client significant costs.
If the client had gone down the more traditional route of human translation and foreign language reviewers, it would have been impossible to meet deadlines and costs would have escalated.
Use of ediscovery platforms
Many large law firms and corporations use ediscovery technology to manage and host litigation ediscovery documentation. Some translation tech programs plug in to popular ediscovery platforms such as kCura’s Relativity platform to enable a streamlined flow of content between parties: the law firm, the client, the ediscovery vendor and the legal language solutions provider. Successful global litigation is dependent on the secure and smooth transfer of data and communication. With many gigabytes and even terabytes of data involved in most mid to large size litigation cases, effective management of this data is crucial to the success of the case.
Documents can be flagged within the ediscovery platform and automatically delivered to the customized MT engines. Translated data is then automatically delivered back to the platform and mapped to the source location. Relying on traditional methods of data transfer, such as email and FTP transfer, can be time consuming and disorganized and has potential for serious security implications if meticulous care is not taken.
Partnership and innovation
Developing a long-term partnership with an expert legal language solutions provider that can provide the most efficient and cost-effective foreign language management strategies for each new case is crucial for success in global litigation. Tailoring and applying the right combination of expertise, language technology, review platform integration and human-based language services is vital to ensuring this success. Additionally, involving a legal language solutions provider as early as possible assists in the forecasting and resource alignment required for the highest quality human translation when needed later in the process. If those of us in the language industry can forecast and build systems to support ongoing litigation needs, then it’s obvious that the translation workflow will be more efficient and cost-effective.
Economic and market forces will continue to fuel the pace of globalization, which will in turn fuel more international litigation. Innovative, agile and intelligent language solutions are crucial to support an increasingly litigious world with few geographical boundaries. The translation and localization industry must continue to drive forward their expertise and knowledge in this area to help shape the future of global litigation.