eTera consulting

We recently held a panel discussion titled Expert Panel: Non-English E-Discovery and Review where the highly respected international litigation expert, Gregory Bufithis, Esq. of Project Counsel, shared a drop of his vast experience. As we time did not permit him to answer all of the questions our audience wanted to ask him, Gregory graciously prepared answers to them.

Are there any opinions in the US finding that a non-US client isn't held to the same retention standards as we are in the US since they do not have as intrusive discovery? Are non-US companies held to less of a standard on "legal hold" type issues?

The case law governing electronic discovery is still evolving, but it is well-established that U.S. courts will not hesitate to order a foreign corporation to produce documents located abroad if the corporation is a party to litigation in the United States, even if it would violate another foreign nation’s privacy laws or discovery “blocking statutes” to do so. Likewise, if a domestic corporation is a party to litigation, a court may order that corporation’s foreign parent, subsidiary or affiliate to produce documents if the court determines that the party has “control” over the documents, wherever the documents may be located. And all such entities are subject to U.S. e-discovery rules including legal holds.

With respect to foreign subsidiaries, parents, and affiliates that are not parties to a U.S. litigation, courts take a more nuanced, fact-intensive approach, examining the relationship between the party over whom the court has jurisdiction and the non-party with possession of the documents to determine if the party has “control” over the documents in the foreign office’s possession such that the court may order production by means of its power over the party litigant.

And you need to be mindful that these efforts by foreign companies were done to check American “fishing expeditions” abroad. France, the United Kingdom, Australia, and Canada, have enacted these so-called “blocking” statutes to prohibit compliance with U.S. discovery orders for the production of evidence located within the blocking state’s territory, and often carry a penal sanction for violations of the statute. For example, France has adopted a blanket prohibition against compliance with foreign discovery orders, unless the orders are passed through “appropriate governmental channels.”

The United Kingdom, Australia, and Canada grant discretionary authority to particular governmental agencies to forbid compliance with specific discovery orders. Additionally, some nations have long-standing laws prohibiting the disclosure of particular types of information for any reason, the classic example being the Swiss bank secrecy law.

On translation, machine and translator are two possibilities, what are your thoughts on using local counsel fluent in the language so that they can translate and review at the same time? Any thoughts on the pros and cons of that?

We usually employ local counsel at the outset when we do not have a large universe of documents. But when we are faced with a large universe we prefer to use machine translation under strict search protocols and then add a “human” review element phase. We also run a QC on those “rejected” as non-responsive.

What are the price points that you are seeing for Non-English speaking Document Reviewers. Especially CJK and in demand languages?

In Europe, this depends on where the review is conducted (Brussels, London, Madrid) and what languages are required (French, Japanese, Norwegian). Rates (in Euros) can be in a band between 25 and 45. In Asia we have seen CJK in a band of $35 to $55.

What could one do to convey the importance of involving qualified native speakers from the beginning of the process and at the project management level in a situation that involves significant number of CJK documents where vast cultural difference and importance of subtle nuances come into play?

You need to provide an overview of non-English language nuances. English has the largest vocabulary in the world; all other languages “double up” the use/definition of the same words. Nuances abound. You also need to explain Unicode and common errors/mistakes in translation.

Does Google (or other providers) maintain records of what you enter to be translated or is the confidentiality concerns just that Google is not on a secure network?

Yes, it is two-fold: (1) Google is not on a secure network, and (2) every search on Google, every use of a Google application by any user is kept forever on Google servers. Google does not delete anything. And given the history of recent subpoenas that have asked Google to produce its electronic files containing all queries that have been entered on Google applications in various matters you can never be sure what data might be revealed and its unintended consequences. 

Posted by Alan Brooks, Vice President, Marketing