It seems like every time I read the Wall Street Journal, I see those four dirty words that make global corporations cringe: Foreign Corrupt Practices Act (FCPA). According to The FCPA Blog, 87 companies appear on the FCPA corporate investigations list for 2016. That’s up from 74 organizations at the end of the second quarter 2015. This is just the number of confirmed investigations; there could be as many as twice this number if one takes into account those internal investigations yet to be revealed.
Although many readers may be familiar with the standard protocols employed in investigations (e.g., document collection, processing, review) the complexity of a global investigation involving translation can present a whole new set of challenges.
A Hypothetical Global Investigation
Let’s take a look at a hypothetical multilingual investigation. Our client, a global medical device manufacturer, has operations in China, Japan, Korea, Russia, and Mongolia. They have engaged one of the Big Four forensics firms to identify custodians and image hard drives as part of the initial collection effort. The audit committee has hired outside counsel to run the investigation and each organization hits the ground running.
There’s only one problem: No one has contemplated how to handle the foreign language component of this investigation.
Let’s focus on the best practices for managing the foreign language portion of this type of case. Many clients consider translation to be something they can handle in-house because:
- “Becky in HR speaks Spanish.”
- “I’ll use Google Translate.”
- “The associates in our Hong Kong office can handle this.”
- “The forensic accountants in Beijing can translate this information on the fly.”
In certain circumstances, all of these options have some validity, but for a mission critical investigation where accuracy and deadlines are paramount, these are not the best choices.
Language Filtering with Technology
Multi-lingual FCPA investigations demand a different level of sophistication and execution. For a large volume of foreign language documents and pending deadlines, language filtering solutions will bring order to the chaos while reducing the time and cost involved in discovering documents that are key to the investigation. These solutions are offered by most language solutions providers (LSPs), and include both human translation and technological tools.
Tool #1: Language identification
A language identification tool analyzes a document and reports the language distribution as either an absolute value (e.g., English, German, Mixed, or unknown) or can deliver a percentage breakdown (e.g., 5% German, 95% English). On a document level, this breakdown allows for granular workflows. On a case level, this knowledge determines the appropriate allocation of native speaking document reviewers necessary, and the most efficient use of these resources.
Tool #2: Foreign language keywords
Translated keywords allow for easy searching within foreign language text. Keyword translation must account for the nuances of another language. For example, 20 English terms can easy become 100 foreign language terms. Filtering native language documents for foreign language keywords will increase the accuracy of the review and improve the results of responsive searches. Translated keywords can save thousands in attorney review costs.
Tool #3: Machine translation
Machine translation will provide reviewers with a basic understanding of large volumes of electronic documents. Machine translation quality correlates to the quality of the source document and how well it can be read by optical character recognition (OCR). Thousands of pages can be translated in a fraction of the time required by traditional methods. If viable, this process is 1/100th the cost of human translations.
Technology-based filtering solutions help the internal team to efficiently identify “hot” documents while eliminating those with no relevance to the investigation. This ensures that only those documents that are absolutely necessary will be submitted for human translation. Once data is collected, processed, and loaded into an eDiscovery tool, outside counsel then begins a document review using contract attorneys. Usually the law firm will perform a first- and second-level review, confirming which documents are hot, and only then will they consider how to translate the documents.
Human Translation Solutions
If machine translation is not feasible (due to the quality of the source documents or the language not being an option for this solution), then summary translations can be a solution. Summary translations convert a few sentences or coded fields, which can aid understanding of the content of the document. With this information, a decision can be made about which documents need a more complete human translation. This is also an effective way to cull large volumes of documents and identify those which require full human translation.
For basic translation, documents are translated by a linguist and then reviewed by a project manager at the LSP. Although not as polished as a full translations, basic translations enable outside counsel to ascertain the complete content of a document. These documents are used by the investigation team for internal use.
Full translation starts with the basic translation process as described above, but adds a formal editing stage and a thorough quality check. Documents that have gone through a full translation processes may be certified upon request and a Certificate of Accuracy (COA) will be issued and notarized. This certification is often required for documents presented to governmental entities.
Any company with global operations should enlist the services of a professional translation company. An LSP will match the most cost effective level of translation with each individual stage of the investigation or ethics and compliance project.
Budgeting for Translation Cost
Bilingual review and translations involve different skill sets and different costs are associated with each service. For this reason, it is best to separate the two in most cases. Industry pricing for on-site review in the U.S. varies from $70 to $110 per hour, depending on the region. In many cases, these reviewers are bilingual attorneys who are trained to identify or translate information that is pertinent to the case.
Translation is typically charged by the word and completed off-site by linguists who are trained to understand legal terminology and context. The price per word will vary by language, subject matter, turnaround time, and volume. In some cases, it may be most expedient to have the bilingual reviewers perform the translation, but this will usually result in a higher cost and slower delivery. The optimal solution would be to have the reviewers identify responsive documents and feed them to the off-site translators. This way, outside counsel will have a continuous workflow that will save precious time, match resources with their respective area of expertise, and manage costs.
Ethics and Compliance Materials
Depending on the type of organization (e.g., manufacturing, sales, distribution, or a combination of all three) and the number of countries (and various languages) where business is conducted, the company will most likely need to translate or localize some, if not all, of the following documents:
- Code of conduct
- Anti-bribery policy
- Anti-corruption policy
- Third-party due diligence questionnaire
- Employment agreements
Ethics and legal compliance documents usually fall under the scope of corporate legal or compliance, HR, internal audit or training (eLearning) stakeholders. In some corporations, the documents may also belong to an import/export or International Traffic in Arms Regulation (ITAR) group. Source material will most often be in English and require translation into a number of languages. These services may be sourced directly by the company or through outside counsel.
Often, local stakeholders may suggest engaging “in-country” resources to translate these materials. These resources are often bilingual employees whose primary role is something other than translation. Certain internal communications may be best handled by in-country resources. However, timely translation of ethics and compliance documents is usually best accomplished when outsourced to a trusted LSP who is accountable for meeting quality standards and delivery deadlines.
Once the documents are translated, the LSP should maintain a translation memory that can be leveraged to minimize the costs of future code and policy updates, as well as repurposing ethics and compliance material for eLearning, HR, internal audit, and training.
Choosing a Language Provider
My best advice for all my clients is to engage an LSP with specific subject matter expertise in FCPA, UK Bribery Act, ethics, and compliance translation and localization. By seeking out a professional and reputable legal translation solutions provider, you will take an important first step in guaranteeing the quality of its ethics and compliance translations.
Editor's note: This article was adapted from the November/December publication of Compliance and Ethics Professional Magazine.