Many litigators underestimate the extent of the challenges they face when litigating a case where most of the evidence is in a language they cannot read. Simple tasks they do, often without even thinking, suddenly become near impossible without assistance. In this article, I want to zone in on one of these tasks—the compilation of evidence and creation of a timeline.
Many good litigators describe their approach to presenting facts as “telling a story.” Pieces of evidence are strung together to create a narrative that flows, resulting in a complete picture that the litigator wishes to tell.
This process, however, is complicated when the litigator cannot read the evidence themselves, such as in the case of foreign language document reviews.
What does Putting Together a Fact Pattern look like in a Foreign Language eDiscovery Project?
In a foreign language eDiscovery context, a litigator normally receives short summaries describing the contents of important documents that relate to the substantive issues of the case—often no more than two sentences long. Out of a concern for efficiency, these short summaries focus exclusively on why the document should be considered important.
But this also has the effect of removing much of the context from the document, including the removal of information that may help to place the document within the larger story the litigator wants to tell.
Take for example, a series of emails that look like this:
Andrea and Ben meet for an illegal discussion to fix prices. A brief summary of their meeting and the prices they agreed to fix is described.
At end of meeting, an off-hand mention is made wherein they consider asking Charles if he’s free on July 1st.
Ordinarily, in a two-sentence summary, the note about Charles would not be mentioned. The reviewer will almost certainly focus on the portion describing Andrea’s and Ben’s interaction, as it is related to central issues in the case and is the information most concretely described.
If, at a later time, a litigator is trying to build a narrative regarding how Charles became involved in the conspiracy, this document could be quite useful.
However, because the litigator is incapable of reading the document in its entirety by themselves, if all they had to go on was the summary, they would never even know such contextual evidence existed.
Translations won’t sidestep this issue
Translating all critical documents is an impractical solution for two main reasons.
First, translations are expensive, and high-quality translations used in legal cases can cost hundreds, upwards of $1,000 or more for a single document. Machine translations can provide translations at a vastly lower cost, but only at the expense of losing many subtleties, potentially missing some crucial cultural element, and including translation inaccuracies that go undiscovered by the litigation team.
Then, you may ask, why not simply have the eDiscovery reviewers (i.e. Bilingual contract attorneys) themselves provide this contextual information on a case-by-case basis?
This is the second issue. The problem with this approach is that no single first level reviewer is aware of the other documents being seen by others on the team. The responsibility of a first level reviewer is solely to address the documents that appear in front of them. They do not keep tabs on what anyone else on the team has found.
The “Charles” problem is what I call the “peripheral” information conundrum—sometimes information that may serve as valuable evidence may go unnoticed because it lies at the periphery of the document.
Peripheral Information and Why It Can Matter
Within a document, some information is obviously important within the 4-corners of the document. This is the type of information that would usually be included in a 2-sentence summary of the document’s contents.
However, there are types of evidence that are primarily useful because of their ability to provide context for other crucial pieces of evidence. This type of evidence often only appears on the periphery of the document. Because there are often other, more overtly important matters discussed in these same documents, anything outside of the primary information is obscured and, as a consequence, not usually summarized in the short description.
An example of peripheral information may be something like small indications that conspirators began considering bringing in another party, for example.
These more subtle indications are more likely to go overlooked by their very nature, particularly if other more overtly important evidence is contained in the same document. Having someone who is aware of the bigger picture, who Is also knowledgeable about the finer details of the review is invaluable. Translators and machine translation systems will miss this entirely. So will machine learning systems that are heavily promoted in the eDiscovery. Sure, they help and can get some things right while culling out a lot of the noise, possibly even promote some of the more relevant docs to the front of the review pile. It can also get a lot wrong and when they are wrong, it is consequentially wrong.
The Bilingual Project Manager Steps In!
This is where a bilingual project manager’s role is crucial— a good project manager, over the course of a project, should become intensely knowledgeable about the various documents that have been found. Their knowledge will include any peripheral information that can help tie together the threads of a story the litigator wishes to tell.
A good project manager can and will point out various connections between key documents as they appear. A document with a simple description which you may not consider as critical for translation may be one the project manager recommends for translation due to how it contextualizes other important documents.
This type of guidance can vastly improve the ways in which a litigator uses their limited resources to maximal effect and can identify the best possible documents to translate to create the strongest factual argument in litigation.
Tying together important documents into a coherent narrative often requires small bits of peripheral information which is located on the margins of important documents can play a major step in making the most persuasive argument possible.
When a litigator is forced to work with short summaries, they may even be entirely unaware that they are missing useful evidence that could make for a smoother, more complete narrative that could make their argument more convincing.
A bilingual project manager is an important part of insuring that this kind of information does not fall through the cracks.