The allure of conducting eDiscovery in Japan is easy to understand: cost. Hourly rates for Japanese language paralegals in Japan are significantly lower than their counterparts in America, and vastly lower than hiring a team of bilingual American attorneys.
From the perspective of risk management, it is important to understand what tradeoffs are involved in conducting a Japan-based review.
The Use of Non-Attorney Personnel in Foreign Language Review
One thing to understand before we begin discussing foreign language review in Japan is that eDiscovery is conducted almost exclusively by non-attorneys. I have been extensively involved in eDiscovery in Japan and am keenly aware of the major eDiscovery operations in Tokyo. Major review operations involving attorneys licensed in Japan or the United States to conduct eDiscovery is exceedingly rare to non-existent, but they do exist. While the teams I’ve directly managed are generally made up of non-Attorneys, there are a few licensed Japanese Attorneys that do end up on our teams. Then there are maybe 1 or 2 providers (not US eDiscovery vendors) that provide Japanese-licensed review Attorneys. It should also be noted that the market for contract attorneys is remarkably different and there’s not a community of freelance Japanese-licensed Attorneys hanging around in Tokyo or Osaka. I’ll cover this topic on a future article.
The use of non-attorneys as contract workers in eDiscovey is also conducted on a limited basis in the United States as well, but generally only within certain languages where there is a severe shortage of available licensed attorneys in that language. Japanese is one such language, where it is not uncommon for work to be split amongst bilingual paralegal eDiscovery workers, linguists and bilingual attorneys.
Thus, it should be understood in the Japanese eDiscovery sphere (for example), there are 3 types of contract reviewers–in descending order of cost:
- Bilingual Attorneys (licensed in US or Japan)
- Bilingual non-attorney reviewers in the United States
- Bilingual non-attorney reviewers in Japan
The benefits of hiring an eDiscovery team that is barred and licensed in American law likely will be discussed more fully in a future article, but today I will focus in particular on discussing the differences in qualifications of American and Japanese paralegals. There are also concerns of data privacy and jurisdiction that may drive in-country reviews, but I will not cover this topic in this article.
What’s in a name? American Bilingual Paralegals
One of the first things to understand is that the industry standard qualifications that are sought in a bilingual paralegal in the United States and Japan are quite different.
The most important language proficiency you are seeking in a bilingual paralegal hired in the United States for a Japanese eDiscovery project is obviously Japanese. We presume that a paralegal living and working in America is proficient in English, and aside from some extremely rare circumstances, this assumption is generally correct.
Bilingual Paralegals in the United States will have no problem reading through legal materials in English and understanding their contents. They will be fully capable of attending a training session held in English and following along without any issue. They can ask questions in English and understand the responses.
Therefore, the primary concern will be their Japanese proficiency and a very high degree of linguistic proficiency is required. Identifying strong US-based candidates with requisite cultural and linguistic knowledge can be a challenge in itself which I discussed more fully here.
The Bilingual Paralegal in Japan: Linguistic Skills
By contrast, bilingual paralegals in Japan are guaranteed to have native level Japanese proficiency and a high degree of cultural knowledge about Japan. The concern is with their English proficiency.
Japan has numerous categories of legal professionals that do not exist or take on very different roles in the legal system compared to the United States. Some examples of qualified legal specialists aside from attorneys in the Japanese system include judicial scriveners, administrative scriveners, maritime scriveners, registered customs specialist and more.
Paralegal is a term that is also used in Japanese （パラリーガル) which simply transliterates the English term, and roughly refers to similar types of employees. There is no formal qualification process to become a paralegal in Japan much as in the United States, unlike Judicial Scriveners who pass a qualification exam.
A Japanese paralegal is a professional with legal training and experience referring broadly to persons working in assisting legal roles under supervision of attorneys in legal offices.
In theory, the eDiscovery paralegals in Japan are also bilingual. However, the industry standard is that the primary consideration is their capacity to review documents that are predominantly in Japanese, thus their “bilingual” proficiency in English is not held to anywhere near the same standards as a bilingual paralegal in the US.
In other words, while the bilingual paralegals in Japan have passed various English language proficiency testing metrics (such as TOEIC), they generally do not have a professional level proficiency in English. In my experience, they do not get much out of attending an English language training session. Understanding a complex set of legal instructions like a coding protocol (instructions from the law firm to the reviewers) in English is unrealistic.
The challenges go beyond merely training and instructions—it is often the case that cases involve a mix of English and Japanese documents. Ensuring the accuracy of English language content among Japanese reviewers is often a major challenge.
In other words, while both English/Japanese paralegals in the Japan and the in the US are both labeled as “bilingual,” they should be understood to bring extremely different skills sets to a review.
The Bilingual Paralegal in Japan: Legal Knowledge
Furthermore, the differences go beyond merely linguistic skills. American bilingual paralegals do not have extensive formal legal training, but by virtue of having lived in the United States and being involved professionally with the legal system, they have a basic understanding of many concepts in American law.
By contrast, most bilingual paralegals in Japan, unless they have extensive experience in eDiscovery, lack even a basic understanding of American legal concepts as their only training and exposure will generally have been in Japanese law.
Concepts like discovery and privilege are entirely and literally foreign to most Japanese bilingual paralegals.
However, the issue goes beyond that—for example, most Americans would be aware that Antitrust laws are strictly enforced in America. The idea that it would be inappropriate for companies that are competitors discussing pricing strategies and issues would come very naturally. This is rooted in American cultural ideas of competition and learning about trust busting Teddy Roosevelt in grade school.
By contrast, Japanese business culture encourages cooperation and conflict avoidance, and Japanese domestic Antitrust laws were traditionally quite toothless. Thus, Japanese people culturally must be trained much more extensively to be able to recognize what kinds of behaviors qualify as “anticompetitive” in American law.
Best Practices: Tokyo eDiscovery Reviews
Does this mean that it’s a bad idea to conduct an eDiscovery review in Tokyo? Most certainly not—a review in Tokyo can be a cost-effective option in conducting eDiscovery.
However, this option should be considered only after first taking into account the differences and limitations of a Japan-based review team.
- An experienced bilingual American attorney as the Project Manager is pretty much an absolute necessity in such a review. Someone must be on the ground, involved daily in the review who is capable to provide instruction to the reviewers in Japanese.
-Due to the limited English skills of a Japan-based review team, someone needs to be the conduit of information flow between the review team and the case team.
-The Project Manager must also be able to quickly convert various guidance and updates from the managing associate to the Japanese review team into Japanese instructions.
-Close and extensive quality control will also be necessary.
- It is absolutely crucial that training materials be provided in Japanese. The reviewers simply will not understand the subtleties of the instructions in English, and this will lead to frequent confusion and mistakes.
- Ideally, the training of eDiscovery reviewers should be conducted in Japanese. If it is not possible to do so, the Project manager should provide extensive follow up training in Japanese to supplement the training.
- If the project involves extensive English content, a US-based team of English reviewers should be strongly considered. As noted above, the English proficiency of Japan based review teams is minimal.
-If the project consists of only small amounts of English content, the team can get by, but if a substantial proportion of documents are in English. However, this can be extremely difficult for the personnel that are typically available in Japan.
- Privilege review should ideally be conducted by a team of US-based bilingual attorneys. It is extremely difficult to get Japanese paralegals (including Attorneys licensed in Japan) to understand the concept of American privilege, much less apply it with any kind of consistency or accuracy.
- The matter at issue should be relatively straightforward and factual in nature, without requiring subtle legal analysis and application: –Due to the lack of exposure to American law or having any legal training in American law, asking a team of Japanese paralegals to finely splice difficult to apply legal issues or subtleties will be extremely challenging.
With these points in mind, a Tokyo-based review can be a cost-effective option to consider. However, ignoring any of these points can dramatically increase the risk of complications, in the form of major inconsistencies or errors, miscommunications and accidental production of trade secrets or privileged communications.