Making The Case For Foreign Language Review

Friday, June 27, 2014 - 10:02

The Editor interviews Amy Kang, Esq., Director of Recruiting, Black Letter Discovery, and Hilke Eyler, Director of Discovery Services, TrustPoint International.

Editor: Based on our topic today, can you share a little of your background and how it applies to foreign language review?

Kang: I am the Director of Recruiting at Black Letter Discovery’s San Francisco office. When Black Letter was founded in 2003, it was one of the first managed review service providers in the industry. In 2012, we were acquired by TrustPoint, a full-service e-discovery company. During my six years in this industry, first as an attorney and now as the director of recruiting, I have seen foreign language review go from an anomaly to something that now encompasses almost half of the managed review work we provide for our corporate clients.

Eyler: I am the Director for Discovery Services for TrustPoint and focus on foreign language reviews and international business. I am a German national and moved to the U.S. three years ago. I have a bachelor’s and a master’s degree in German linguistics and biology. Additionally, I know Spanish, French, and some Dutch. I also specialize in international education and communication. I hope my international relationships coupled with technical and scientific skills will contribute to the growth of TrustPoint’s international client base, which involves foreign language review.

Editor: What is the difference between a foreign language review and document translation?

Kang: This is a very important distinction and a common source of confusion. Document translation involves an individual literally translating a word from one language to another, and a successful translation simply requires that the individual is fluent in that particular language. Foreign language review, on the other hand, requires more than just fluency in a language. Foreign language review involves fluent reviewers applying legal principles to determine relevance, potential privilege, and other legal issues. This is the main distinction, and it is a very important distinction.

Editor: Why is an understanding of that difference important in determining a client’s needs?

Eyler: In a word, cost. To deliver results that meet and exceed the client’s expectations, it is obviously important to find the most cost-effective solution. In this circumstance, it means helping the client understand whether he is looking for a document translator or a foreign language document reviewer, and the difference can mean thousands of dollars in expenses. To avoid such costly mistakes, the very first step in our established work process is to analyze and determine the client’s translation needs. At TrustPoint, we understand the complexity of adapting English-language instruments for use in global legal support and we are aware of the increasingly regulated process. We follow the latest guidance on linguistic validation methodology closely, both for quality assurance and to be aware of our clients’ needs before they even realize it.

Kang: From a managed review perspective, understanding the difference between foreign language review and document translation is necessary to determine how to source the right attorneys for the client. Effective screening of candidates is crucial to ensuring that a reviewer possesses not only the fluency, but also the applicable legal skills and background required for each particular matter.

Editor: Why is foreign language review increasing in importance?

Kang: In our global economy, collections now often include documents in several languages. This is something that corporate legal departments have to deal with more frequently than ever, and I think it will only increase in frequency. As a result, foreign language review is likely to be at the top of the list for outside counsel, corporate counsel, and anyone dealing with discovery.

Eyler: Globalization continues to intertwine markets and businesses. There are many more international litigation and compliance issues, along with investigations into areas such as FCPA violations. In addition to cross-border e-discovery issues, data privacy issues are also becoming more important. As countries update their privacy laws, foreign language review becomes increasingly significant. Another example is the ISPOR-compliant linguistic validation methodology, which usually involves more than one country.

Editor: So the firm or vendor conducting the foreign language review would need to have an understanding of the privacy laws in different jurisdictions?

Eyler: Exactly. For example, the data privacy laws of some countries prohibit a company from reviewing certain data from an employee’s own files unless the data was obtained for investigatory purposes or certain permissions were obtained, which many times is not the case. These types of scenarios need to be understood by the parties involved so that they can conduct the review within the specific parameters of those countries.

Editor: What are the areas of foreign language expertise that are important to clients?

Eyler: I have a different spin on things since I’m a linguist. From my standpoint, the most important things, especially for investigations, are slang and different nuances in speech. Cultural awareness, data privacy, and experience are also very important. As a native speaker I can also bring cultural awareness to the table firsthand. Other key points are quality, flexibility and, of course, speed, since time is always of the essence in these matters. Our certified linguists are very experienced in translating in the pharma, healthcare, and outcomes research sectors. All linguistic projects follow the industry’s most stringent guidelines for quality assurance, and we work hard at risk management. Since our reviewers are so experienced and fast working on a high quality level, we save our clients up to a quarter on their costs. Our services are also very flexible, because we realize that a one-size-fits-all methodology won’t serve our clients’ needs.

Kang: I agree with Hilke – cultural awareness is very important. Working with foreign language attorneys often involves working with non-native speakers from a variety of backgrounds, so awareness and understanding of their individual backgrounds is critical. When you have developed positive relationships with foreign language attorneys, it is easier to engage and motivate them to stay on task. Our deep and developed network of foreign language review attorneys is what differentiates Black Letter Discovery from other companies.

Clients should also consider how much experience their service provider has in managing foreign language reviews. Consider that your team of outside counsel is conducting a review when they encouter Korean-language documents. Who do they turn to to review the documents, and how do they know that the reviewers are doing quality work and making the right calls? How can they check their work when they don’t read the language? Foreign language review brings an additional layer of complexity and cost to any document review project. Without a team that is experienced in managing the intracacies and nuances of foreign language reviews, costs can quickly get out of hand and the quality of the review can suffer. You need the right mix of people, management, and a proven process to make sure that you are producing the right documents, on time and within your budget. Exceeding the budget can happen very quickly with foreign language reviews, as compared to native language reviews.

Editor: Can you put a face on how this expertise has been applied in specific areas that our corporate counsel and legal department audience would be interested in?

Kang: At Black Letter Discovery, we routinely staff reviewers in a variety of foreign language reviews. Recently we staffed and managed a large team of Japanese-language attorneys for a pharmaceutical patent litigation matter. The client needed several U.S.-licensed Japanese-language attorneys to review over 400,000 documents. We were able to reach into our network of experienced Japanese-language attorneys from across the country to craft a team of over 25 attorneys, working in five different offices. While this would not necessarily be a large team size for a native language review, for a Japanese-language attorney team it is significant. This is largely because the availability of qualified and U.S.-licensed Japanese-language attorneys is extremely low, as compared to unlicensed reviewers, which are far easier to obtain. This project was one of the largest and most successful Japanese-language attorney review projects, and one of the reasons that Black Letter has made a name for itself as a go-to company for foreign language review teams.

Eyler: TrustPoint has also been heavily involved in FCPA reviews and other cross-border disputes, involving over twenty different countries and over fifteen different languages, including, Spanish, French, Portuguese, Polish, German, Norwegian, Russian, Ukrainian, Croatian, Slovak, and Hebrew.

Editor: How does working with foreign language attorneys differ from working with native language attorneys?

Eyler: With the proper project management and process management, it is very similar to the English reviews that we conduct. With the right system in place, it can succeed without many complications. TrustPoint has developed an extensive integrated managed review process that covers the entire discovery lifecycle, utilizing best practices to achieve efficiencies and value add.

Kang: I agree with Hilke. The management of foreign language review can be more complicated than managing a native language review team, but if you have an experienced team with hands-on management practices, then you can have a seamless review project that runs as smoothly as a native language review project. As we’ve discussed, one challenge in managing a foreign language review is the limited availability of foreign language review attorneys. As a result of this limitation, sometimes you have to staff a project with attorneys working in many different locations and different time zones. In order to ensure that everyone on the team is in sync and on the same page, you need experienced project managers that work with outside counsel and the client to facilitate clear lines of communication and collaboration. Earlier we discussed the Japanese language pharmaceutical litigation review that we staffed and managed last year – that project involved a team of 25 attorneys working in San Francisco, Los Angeles, New York, DC, and Chicago. There were multiple time zones to deal with, and a lot of hands-on management required, but it was a very successful review. Black Letter Discovery’s reputation as foreign language review specialists is due to our experience in this area.

Editor: As both of you work with TrustPoint International, can you share how foreign language review fits into your ability to serve clients?

Eyler: TrustPoint can assist anywhere in the world with foreign language reviews, setting up review spaces wherever needed, helping with hosting, processing, collections and reviews, domestically or internationally, on-site or in secure, client-side spaces.

Kang: Foreign language review is a core part of our managed review services offering. Black Letter Discovery is often cited as the foreign language review specialists because of the large volume of foreign language reviews that we have dealt with. We have extensive experience in supporting multinational and multilingual review projects. Our goal in every project is to ensure our clients have the reviewer resources and expertise to achieve their review objectives, in a timely and cost-effective manner.

Editor: Any final advice you would give corporate legal departments as they consider conducting foreign language reviews?

Kang: Foreign language review is something that can add complexity and cost to a corporate legal department’s e-discovery game plan, but if you have the right team of people and a well-thought-out process in place, you can minimize the time and money expended on any foreign language review.

Eyler: Reach out to us because we’re specialists in this area. TrustPoint customizes solutions to the client’s needs in order to keep their costs as low as possible with services like predictive coding and analytics tools. 

Please email the interviewees at amy@blackletterdiscovery.com or heyler@trustpointintl.com with questions about this interview.