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Legal Translation of Electronic Discovery Evidence

According to the Federal Rules of Evidence, the Best Evidence Rule requires that no evidence be admitted unless it is the best that the nature of the case will allow. However, when such evidence as electronic discovery documents are presented in a foreign language, they must be translated into English before being filed with the Court. The question that arises in this situation is what is the best foreign language evidence translation: a computer-generated translation, or a translation done by a certified, human translator?  In general, when the evidence in question is produced by automatic translation, or by processes, translation software, machines, or other devices that can be reasonably shown that, when used properly, lead to the alleged outcome, the Best Evidence Rule assumes the document is accurate- unless, of course, evidence to the contrary is shown. Which raises the question of whether or not a computer-generated foreign language translation can be shown to satisfy the Best Evidence Rule.

Although there is little case law on point, one can get a general idea of where the law is heading in the case involving United Flight 93 and the discovery of its cockpit vehicle recorder (CVR) recording. Part of this recording contained conversation of the terrorists speaking in Arabic. During an in camera discovery hearing, the government presented the CVR recording with streaming text transcriptions that included an automatically generated foreign language translation of the Arabic portions.

The Court issued a general decision as to the admissibility of CVR recording. According to the Court, the streaming text transcription of the conversation was not admissible. The Court based their ruling on a relevancy basis, as opposed to a Best Evidence finding. However, this reasoning tends to suggest that, had the computer-generated evidence been relevant to the issue at hand, the Court would have admitted it so long as it was properly authenticated in accordance with the Federal Rules of Evidence.

Yet, since machine-generated foreign language translations are prone to error, much room exists for challenging their authentication and relevancy. Therefore, we advise using professional language translation services, utilizing human, certified translators.

In Re September 11 Litigation/Driscoll v. Argenbright Security, et. al. 02 Civ. 7912 (AKH)

Click here to read our legal translation blog post “Challenging Computer Generated Foreign Language Translations”.

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