By: Erin Gray
Despite the effects of the COVID-19 pandemic trade, capital and information, studies have shown that globalization has returned and accelerated from the pre-pandemic levels. Therefore, the legal field will continue to face legal challenges that cross land and water borders. Thus, the legal challenges will affect individuals with different values and beliefs. However, this poses significant hurdles for legal professionals to overcome due to language and cultural barriers. The question then is how can we properly advocate for our clients if we can’t readily understand the law or the facts because of language differences?
Discovery is an essential component to civil litigation because it ensures that both parties acquire information to resolve a dispute. This stage of litigation is meant to promote efficiency by encouraging settlements and allowing the parties to identify the issues in conflict. To facilitate this process, the Federal Rules of Civil Procedure outlines a legal professional’s duty to disclose a variety of information to opposing parties. Fed. R. Civ. Pro. 26. Before the proliferation of technology in a variety of professional fields, this would entail the exchange of boxes of paper. However, many businesses and individuals store important data in digital format, making eDiscovery of equal if not more important. The rules of litigation reflect this importance with the implementation of Rule 34 for producing electrically stored information. Fed. R. Civ. Pro. 34. Now parties can find their “smoking gun” in email communications, databases or text messages to name a few. Additionally, the exchange of information is much more seamless than carrying or shipping boxes of paper information.
In international litigation, however, eDiscovery can be shared in a language that a legal professional is not familiar or fluent in. Multilingual eDiscovery is an essential tool in overcoming this boundary. This tool “involves the use of technology and specialized techniques to collect, process, review, and produce electronic data in multiple languages.” The process also includes the use of advanced translation tools and machine learning algorithms to help investigators understand and analyze foreign language data.” One important benefit of this tool is that it promotes efficiency by reducing the time and effort used to translate and process data. Additionally, it improves accuracy and quality, reduces translation costs, and provides a common platform to share data.
At the same time, many courts have required that documents be translated before being given to the requesting party. For example, in Hiser v. Volkswagen Group of Am., Inc., the Plaintiff filed an automobile product liability suit. During discovery, the Plaintiff requested information about the seatbelt model, including its development and discontinuation. Some of the documents provided were in German and the Plaintiff requested that the Plaintiff be required to translate the documents. The Court found that if the documents identified by the responding party during discovery are in a foreign language, that party must provide a translation of those documents. Therefore, the Plaintiff did not have to bear the burden of translating the document themselves.
By using advanced technology and machine learning, multilingual eDiscovery tackles the challenges presented by language and culture, but also those presented by factfinding in general. For example, this tool can advanced search, identify relevant information and dispose of anything deemed irrelevant to the particular case. Therefore, the software can streamline the judicial process, not only in translating documents but in identifying documents that can be used in court or for settlement.
As the world becomes more interconnected, both legally and socially, the legal profession must adapt. Specifically, legal professionals must be prepared to encounter legal documents that are foreign to them in concept and in language. The American Bar Association believes that “[a]wareness of, and ability to understand, issues of culture . . . that might affect communication techniques and influence client objectives is inextricably intertwined with providing effective legal advice to a client.” We have a duty as representatives of our clients to fully understand the law and facts of our clients’ case. Therefore, even when confronted with foreign information and communication, we must do all we can to fully understand the problem. As a result, tools like multilingual eDiscovery are vital in being ethical and effective in our representation. Developments in technology and software can not only help in advancing representation in foreign litigation, but also in litigation in general.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
Student Bio: Erin Gray is a second-year law student at Suffolk University Law School. She is a staff writer for the Journal of High Technology Law. Due to her passion for technology law, Erin is also on the Executive Board of two student organizations, the Data Privacy & Cybersecurity Law Association and the Legal Innovation & Technology Student Association.
