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Approximately 99 percent of all data and documents created by U.S. businesses today are in electronic form. As these businesses become more global in scope, they send and receive more foreign-language documents. Thus, when a business dispute, a government investigation, or litigation arises today, foreign-language documents often are at the epicenter. Foreign-language documents present a host of challenges for even the most technically savvy attorney. Some challenges are obvious: For starters, foreign documents must be accurately translated. But even a literal translation may not capture a writer’s exact meaning. For example, many Spanish-speaking countries use different words to describe the same thing. A Venezuelan might refer to a computer as a “computadora,” while a Spaniard would call it an “ordenador.” Translators and translation-software programs need to understand these subtle differences to capture an author’s intended meaning. Other challenges are less obvious and even more daunting. Chief among them is that the methods of recovery and review of foreign-language e-mails, internal memos, and drafts can differ dramatically from country to country. It is often not sufficient to use established U.S. document collection and review methods, or even a proven method used in one foreign country in matters involving another country’s foreign-language documents. Attorneys need to know about some of the knottier problems that foreign-language documents present, and how they, their litigation support teams, and their clients can handle them. All electronic discovery has some elements in common, of course. For example, regardless of language, in every electronic-discovery project, documents must be located and retrieved from different types of storage media, such as backup tapes, hard drives, and laptop computers. Similarly, the parameters for collection of all documents should be considered and defined before the job starts. “Filtering” criteria (de-duplication of copies, using time-range restrictions, and imposing custodial constraints) should be decided and applied after collection but before lawyer review. Thus, a well-conceived document collection can go a long way toward minimizing the chance of anyone getting tripped up over electronic-discovery issues, regardless of where the data reside. MORE HURDLES Certain foreign-language electronic documents, however, pose additional, unique technical challenges. Lawyers and their clients can save time, effort, and money if they recognize and address these challenges before discovery begins. The biggest hurdle lawyers must overcome whenever they handle electronic documents is determining how to gather and process them without either losing content (the document text) or valuable metadata (computer-generated data about each document, such as who created it, where it was stored, and when it was last modified). Foreign languages, however, present more challenges. Often they are not accessible via standard U.S. operating systems (such as Microsoft Windows, Unix, or Linux) nor subject to other universal computer standards. Rather, it is not unusual for one set of foreign-language documents to be stored or processed differently from U.S. or even other foreign-language operating systems or computer programs. As a result, the methods used for gathering, processing, and reviewing electronic documents will vary � sometimes dramatically � depending on the foreign languages in the data set or the systems and programs originally used to create them. The devil truly is in the details, for if data are gathered incorrectly or data-collection records are not created and securely maintained at the same time, the contents of the documents themselves may be inaccessible, significantly altered, or even lost forever. Enron, New York State Attorney General Elliot Spitzer’s securities investigations, and the proposed overhaul of the federal discovery rules underscore that the stakes have never been higher when it comes to honoring the duty to preserve discoverable electronic information. WHEN IN JAPAN Japanese documents typify the kinds of unique electronic-discovery challenges attorneys face. Documents written in Japanese are not amenable to the same standardized routines used for gathering American documents. Consequently, what is routine in Japan can become very problematic in the United States. To understand the peculiar nature of these problems, lawyers must be familiar with the basics of storing electronic documents. In a nutshell, computers process and store all information as ones and zeros and, therefore, must represent all characters, numbers, and symbols as distinct patterns of ones and zeros. This binary mapping of characters is called “encoding.” Virtually all documents stored in English use a common type of encoding called ASCII. The ASCII standard for encoding enables computers to exchange long lists of ones and zeros and consistently translate these lists back into understandable English characters. Different languages, however, are encoded differently, and Japanese, which does not use the Latin alphabet, is encoded very differently from English in several key respects. First, Japanese does not have a single encoding scheme, like ASCII. Rather, Japanese computers commonly use at least three different encoding formats to generate and transmit documents that may be subject to U.S. legal discovery practice. To compound matters, these formats are incompatible. Documents encoded using one standard cannot be read by a Japanese computer using another standard. Thus, if an attorney does not know what type of encoding was used originally to create a document, she cannot begin to have the ones and zeros translated back into Japanese characters. Even worse, in many instances the encoding of the document itself cannot be detected simply by an examination of the ones and zeros in the file. In such situations, attorneys face two equally unappealing choices: Either try each of the three encoding formats for every document in the universe until the “shoe fits,” or entirely forgo reviewing and producing any Japanese documents for which the encoding is unknown. The first choice can be expensive and time-consuming. The second option is fraught with peril and could give rise to court sanctions. So what can lawyers do to avoid this modern-day Hobson’s choice? The answer lies in proper document preservation and project preparation before any data are gathered and extracted. Attorneys must know the type of encoding used to create each retrieved document. Though an attorney may decide not to travel to Japan to untangle this data puzzle, she should, at a minimum, retain a competent data-collection consultant who will. While in Japan the consultant (or attorney) should work closely with the client’s IT staff on the collection effort and independently corroborate the steps undertaken to preserve and retrieve the data, both to keep the chain of custody clear and to ensure that all necessary information about encoding is maintained. An ounce of prevention is still worth a pound of cure (or perhaps it’s better to say, a gigabyte of prevention is now worth a terabyte of cure). THE CHALLENGE OF FOREIGN E-MAIL E-mail presents another set of independent challenges. Microsoft Outlook is commonly used for e-mail in Japan, just as it is in the United States. In both this country and abroad, e-mail messages often are gathered from an Outlook Exchange server or a local hard drive and then loaded into a container file called a “.pst” file. The file contains both the text of the messages and the metadata associated with each message (such as the date, sender, receiver, and where it was stored). Metadata often is extremely important in litigation because it conveys critical information beyond the mere text of a message, such as whether an e-mail recipient did, in fact, ever receive or open a message. Because of metadata’s importance, lawyers should always try to preserve it when they collect documents. Unfortunately, it is much more difficult to preserve metadata associated with Japanese e-mail messages than it is with U.S. e-mail. The difficulty arises because the version of Outlook that is used in Japan is not identical to the version used in the United States. As a result, if Japanese e-mail is loaded into a .pst file created in a U.S. Windows environment, critical metadata may be lost. Further complicating this picture is the fact that .pst files are not always created in the same way. In fact, many “tools” can be used to create a Japanese .pst file. If the proper tool is not used to load e-mail messages into the file, metadata might not be recovered. Thus, a lawyer must still remember to record precisely what tool was used to convert the e-mails into a .pst file, even if she was operating exclusively in a Japanese Windows environment, otherwise she risks not being able to access the data when it is shipped to the United States. Properly loading the Japanese e-mail into a Japanese .pst file is just half the battle; the data still must be extracted successfully in the United States using the same .pst conversion tool. Japanese documents are not the only foreign-language documents that create potential pitfalls for lawyers in the electronic age. Chinese-, Korean-, and most other Asian-Pacific-language documents will give rise to similar challenges. Generally speaking, documents written using the Latin alphabet should present fewer problems. Still, even Latin-based languages use characters that do not appear in English. The presence of a mere � or � in French documents or an � or � in Spanish documents can affect the accuracy of searches conducted in those data sets, even if all data were properly extracted. As the U.S. economy and legal profession continue to go global, attorneys will encounter more foreign-language electronic documents. Those same attorneys, however, must not lose sight of the fact that while those documents are subject to scrutiny by U.S. firms, regulators, and courts, traditional software tools by themselves may not facilitate full retrieval and review. Lawyers may need to rely on foreign solutions � or U.S. companies with access to those foreign solutions � to make sense of foreign-language documents. There is little question that attorneys who choose to take an active role in planning and monitoring foreign-language electronic-data collections often assume new and complex challenges. But failing to make that choice at all could lead to far more onerous, costly, and irreversible consequences.
Stephen D. Whetstone is vice president for client development and strategy at Stratify Inc. Before joining Stratify, he was a litigation partner at Testa Hurwitz & Thiebault in Boston.

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