Cross-border litigation can be complicated and costly. It’s not unusual for up to 50% of content received during the discovery process to be in a language other than English when working a case in the international realm. Law firms need to plan ahead to account for the additional complexities such as language and culture to help the case proceed smoothly with minimal delays.
Cross-border litigation is exceedingly complicated, time-consuming, and costly. Consider the implications that Brexit will have on multinational corporations who have operations throughout the European Union. As the United Kingdom plans its exit from the European Union, many legal and litigation matters will come into question for corporations and outside counsel.
As Brexit could have an impact on the enforceability of contracts governed under English law, it’s expected that the referendum will result in more cross-border litigation, investigations and regulatory oversight for US and UK-based businesses with international operations. Until Brexit becomes a reality and legal matters are sorted, organizations and their counsels need to prepare.
While the implications of Brexit on international litigation is still up in the air, let's review a past case between two major fashion designers that exemplifies the obstacles that arise in litigation across borders.
The Case of Louboutin and Yves Saint-Laurent
One highly-publicized cross-border litigation case was that between Christian Louboutin, a shoe designer, and Yves Saint-Laurent, a fashion designer in 2011.
Louboutin sued Saint-Laurent for making footwear that had a red sole, a distinctive feature of Louboutin shoes for which they hold a patent for. Both companies are French but the case was tried in American opening them up to several complexities.
Obstacles to Discovery in Cross-Border Litigation
Louboutin’s lawyer describes four layers of difficulty in international litigation when it comes to the discovery process.
- Language – The most obvious is the mixture of languages used throughout communication and documentation
- Culture – How people communicate through e-mail and other forms of communication varies country to country. When unfamiliar with local languages and slang, it can be difficult to decipher the communication.
- Local law – While the United States has specific and strict laws in regards to discovery, many foreign countries have limited laws and do not always require businesses to forfeit confidential information.
- Sheer volume – Electronic communication has made discovery a huge undertaking with many cases involving gigabytes on gigabytes of data many of which may be one to two sentence email responses.
How to best tackle these obstacles? We’ll first dive into the complexity of foreign language which is important to understand before coming up with a plan of attack for any international litigation.
Understand the Complexities of Foreign Languages
Foreign languages alone are complex but when you add in colloquialisms and short-hand used through direct messaging, text/SMS, social media, and other evolving channels which have altered the way we communicate through language, they become more complicated than ever.
Machine translation tools can be greatly beneficial to identify the importance of documents but how can a computer algorithm identify words and sentences when phrases such as IDK (I don’t know) and LMK (let me know) are used. Never mind in other languages were they frequently use letter that represent the sound the word makes. For example, in Spanish a common short-hand for “por que” or “que” is simply the letter “k”. Vastly different than how English speakers use the letter ‘k’.
Machine translation tools can handle mass volumes of data quickly to give a general idea of the basic relevancy of a document but there will have to be a certain amount of human labor behind the machines to further sort through the potential terabytes of data.
Engage Industry Experts
Once you know you will have to handle a multilingual discovery, seek out a professional and qualified translation agency to support you through the discovery process. Do you need multiple vendors or can you identify one translation agency to assist with the entire process?
Vet all translation agencies up front to ensure they have experience and references in the various specialties involved in your case and also with handling large amounts of data. Review their confidentiality policy and ask questions to gauge the type of workloads they are used to handling.
What’s the Best Approach?
Plan ahead! Have thorough conversations early on about the data involved in discovery to put the process on the right track from the start. Prepare a collection method as part of your strategy so coordination among all involved is done correctly and efficiently from the start.
Along with planning ahead comes fluid communication between all parties involved. Determine what types of vendors may be needed once discovery has begun so that when you are ready to collect and analyze, all teams are ready.
Planning ahead and knowing what your goals are will prevent obstacles with cross-border litigation and successful multilingual discovery requires many moving parts. It will also help to control you costs by being organized up front and using technology to your advantage in order to weed out unnecessary documentation.
Outsource the noise so you can focus on litigation strategy. Conduct all the moving parts within the discovery strategy so that you as an attorney are collecting the important pieces of information you need for your case. Leave the rest to your team working through the data, translation, and organization of the files involved.