Language Translation as a Tool to Control International E-Discovery Costs and Risks
The Internet may be enabling companies to reach the global marketplace more quickly and cost-effectively, but it is not necessarily having the same simplifying effect on legal discovery and litigation. In fact, companies involved in litigation today must be prepared to deal with huge amounts of electronically stored information (ESI) as an increasingly important aspect of litigation. Global organizations with overseas affiliates face even greater challenges in managing and translating multilingual ESI according to international law.
The global volume of ESI has increased dramatically in a very short time. In 2005, the total amount of ESI worldwide (the “digital universe”) was 130 exabytes.1 In 2011, the digital universe expanded to over 1800 exabytes, enough data to fill 57.5 billion 32GB Apple iPads.2 Legal regulations are also evolving regarding the inclusion of ESI in legal matters. The universe of digital information that must now be protected and preserved has expanded to include the full spectrum of business communications, from e-mail to spreadsheets and databases that may later play a role in litigation3 – and much of it is now stored “in the cloud.”
Growing Prevalence of E-Discovery
E-discovery is the process in which one of the parties involved in a lawsuit asks for access to ESI from the other. E-discovery is more prevalent because of the explosion of ESI and storage devices that make up the fabric of business communications, from corporate systems to notebooks, smartphones and beyond.
Both parties involved in a litigation case are likely to incur some e-discovery costs but it is the producing party, rather than the requesting party, that covers the cost of finding and sending the ESI. Many companies are preparing for the growth of e-discovery and are adjusting their budgets accordingly. For example, 25 percent of large-cap businesses in the United States and the United Kingdom anticipated an increase in e-discovery budgets for 2011, notwithstanding improvements in e-discovery tools and technologies.4
Added Complexities and Costs Related to International E-Discovery
International e-discovery is additionally demanding and challenging to manage. Not only must companies be versant in international law, but they must also be prepared to manage a multilingual e-discovery process – two issues that can present new risks and cause litigation costs to quickly spiral out of control. When foreign languages are involved, e-discovery costs automatically increase as a result of the requirement to translate the information into the preferred language. Additionally, in European Union (EU) related litigation, companies are required to handle ESI according to privacy laws that are much stricter than in other parts of the world.
In the U.S., in general, the Federal Rules of Civil Procedure (FRCP) Rule 26 applies to all e-discovery requests in a federal district court regardless of the location of the ESI sought. Therefore, FRCP 26 generally applies to international e-discovery, which is the discovery of ESI located out of the United States. Nonetheless, international e-discovery may implicate international treaties, such as the Hague Convention, and foreign blocking statutes in countries such as France, China, Malaysia, Netherlands and Switzerland.5 Few federal courts have addressed the costs of conducting e-discovery on ESI outside the United States (international e-discovery), even though international e-discovery involves additional costs.
Seek Expert Language Translation Advice on International E-Discovery Matters
For all of these reasons, international e-discovery represents significant costs and risks. One of the best protective measures a company can take is to partner with an expert legal translation provider with a proven track record in complex litigation projects. These specialists can provide advice on options to reduce translation time and costs such as machine translation, language identification systems and optical character recognition (OCR) – even on language solutions to integrate with the document review platform. They can also provide certified or sworn translations, when needed, to further minimize risk.
Companies should seek advice early in any international legal matter to prevent risks and escalating costs from occurring later in the process.
1 Note: One exabyte is equal to one billion gigabytes. http://www.techterms.com/definition/exabyte
2 John Yip, “Addressing the Costs of and Comity Concerns of International E-discovery,” Washington Law Review; June 2012.
3 Riki Fujitani and Eric Kunisaki, “Litigation in the information age: taking discovery into the digital era to comply with new federal e-discovery requirements,” Journal of Compliance, Volume 8 NO 2, 2007.
4 John Yip.
5 John Yip.
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