Here is a replay of a conversation I had at the start of my first foreign language document review:
Me: I think I see some inconsistencies in the coding and I have run a search on a phrase to find these documents. I do not think the phrase is a greeting.
Japanese Reviewer: It is a greeting.
Both of Us: Laughter.
This was one of my first conversations discussing quality control with a Japanese reviewer. I had never managed a foreign document review, so when I was asked to help manage the ongoing review, I had to approach it with humility and a little humor. I describe myself as “knowing enough Spanish to be dangerous” but I did not know 日本語 (Japanese). The Japanese reviewers had been reviewing for weeks so it was time to prepare our productions and privilege logs. Did I mention I never managed a foreign document review before?
When it was all said and done, we were successful in meeting our deadlines but there were many challenges along the way. Globalization is here to stay and I knew this would not likely be my last foreign document review (in fact, I’ve managed several more since this initial matter ended).
For those of you who might be in the same spot, here are few lessons I learned along the way:
Be specific about the level of fluency and the type of legal expertise needed in your reviewers. I suggest that you not look to a language translation proficiency score (such as the scores provided by some foreign language testing companies) to do all the screening for you. It is great if the review attorney has a high proficiency score, but being an effective document reviewer obviously requires more than the ability to translate a document. An understanding of legal principles (such as legal privilege) and review experience are equally important for a competent review team. Consider posing the following questions of potential reviewers: Have they have worked on multi-lingual reviews (especially for native speakers)? Do they have industry or subject matter experience? Are they bi-cultural? Have they worked on complex document reviews? Do they have experience taking the lead on, or supervising, a review? This last question is particularly important if you do not have a foreign language speaker in-house and you need additional resources for second level and quality control review.
2. Review Tool
Work with your e-discovery team to understand the capabilities and limitations of your review tool before defaulting to a linear approach. You need to know how languages with non-English characters are treated. For example, I have sometimes found that search terms may not be recognized by the program because the foreign text font is not standard. Additionally, in the case of Chinese, Japanese and Korean (“CJK”), special tokenization may be required because there is usually no spacing and therefore what constitutes an individual word maybe ambiguous. Despite these challenges, there are many ways to expedite your review, including advanced analytics, predictive coding, linguistic analysis or contextual grouping. There are also translation tools that may assist in verifying the quality of work product.
3. Protocols and Training
As always, ensure the reviewers have a comprehensive understanding of the litigation matter and the case team discovery plan. When preparing your review protocol memorandum, include all documents relevant to the matter, pleadings, document requests, summaries and coding definitions. It is even more important than usual to review foreign language search terms. Encourage the reviewers to discuss any terms that they believe may result in false hits at the outset and throughout the review. It is always helpful to discuss specific documents to explain what is responsive to discovery requests, what is privileged and how the documents should be coded. If this is a multi-lingual review and you do not have a relevant language speaker in-house, simply reviewing the English language documents may assist reviewers in making their determinations.
Whatever review tool you use, train the reviewers as if they have never used the tool before. Most reviewers will have previous experience with most review tools, but they might not know all the particularly helpful functionalities. For example, if the review requiresredactions, or complicated searches, foreign language reviewers should receive more thorough training than in the case of English language reviews.
4. QC Early and Often
Implement a quality control process early on to address review accuracy. As with an English language review, the QC concerns in foreign language review are the same. You will want to get an overall feel of the competency of each reviewer and address inconsistent coding, which may indicate the need for additional training or for a substantive re-review. Quality control is challenging when you are not language proficient so you may want to enlist the client as a QC resource. Client QC review may also be essential to understand the nature and sensitivities of the documents of which you or the reviewer may not be aware.
5. Timeline and Workflows
Factor in the likelihood of a slower paced review when considering internal and external deadlines. While you may be accustomed to reviewers coding 50-100 documents per hour, the pace of a foreign language document review will almost certainly be slower. This is especially true for a CJK review. Consider working with your e-discovery team to create appropriately streamlined quality control and privilege log workflows to compensate for the expected slower review pace.
Constant communication is key. Daily emails, weekly meetings and longer than usual conferences may be necessary. You may find yourself walking through documents together with your reviewers to resolve issues and apparent inconsistencies. By taking this extra time, you should see an increase in the overall review accuracy and efficiency.
Here is a replay of a conversation I had after an extended period of foreign language document review:
Me: Here are two documents that look identical. I think one of them says “legal” but I do not see “legal” in the other. Would you please confirm?
Japanese Reviewer: I am really impressed that you could tell it was the same document.
Me: Remember when I ran a search on a greeting?
Both of Us: Laughter
I felt a good bit of pride after hearing the Japanese reviewer’s assessment, which occurred after several supplemental productions and privilege logs. I’ll never claim that I can read Japanese, but I do now recognize some Japanese characters. If I ever travel to Japan and I see a sign that says “法”, I will know it says “legal.”
DISCLAIMER: The information contained in this blog is not intended as legal advice or as an opinion on specific facts. For more information about these issues, please contact the author(s) of this blog or your existing LitSmart contact. The invitation to contact the author is not to be construed as a solicitation for legal work. Any new attorney/client relationship will be confirmed in writing.