FCPA and Foreign Language Document Reviews

FCPA Document Translation Services

Certified legal translation services play an important role in FCPA compliance.  With a rare exception, a successfully managed, large-scale Foreign Corrupt Practices Act (FCPA) document review is measured by three critical factors: efficiency, accuracy and cost. While accuracy is of paramount importance, particularly in anticipation of potential disclosure to the Department of Justice or the Securities and Exchange Commission, efficiency and cost are often equally significant concerns to in-house counsel. FCPA lawyers who manage and oversee voluminous multilingual document reviews on a day-today basis must closely monitor the efficiency of the process they have set in place to collect, review, analyze, translate and finalize the documents that will ultimately be used as interview exhibits in order to ensure that the timeline and budget for the project stays within the bounds of the client’s projected estimates.

While any sizable document review presents numerous logistical challenges, reviewing foreign language documents creates layers of unique difficulties, all of which add time and expense. Although it is impossible to predict every complication that will inevitably arise throughout the course of a large-scale multilingual FCPA review, this overview of common obstacles and roadblocks is designed to assist FCPA practitioners anticipate the challenges ahead and to help manage client expectations and budgets without sacrificing the quality of the work product.

Although the document review stage presents various logistical challenges, witness interviews introduce communication difficulties and issues of cultural misunderstanding that can threaten the quality of the fact finding and the information gathering. Consequently, FCPA lawyers who plan to conduct witness interviews in foreign markets are well-advised to conduct targeted pre-trip research to best prepare themselves and their team for the unspoken rules they might encounter during the face-to-face meetings with the key witnesses who are relevant to their investigation.

One key to managing a large-scale foreign language document review operation is to start by assembling a review team comprised of native speakers. Professional translators who are the native speakers of the given language will not only be more capable of understanding idiomatic expressions or slang when reviewing email communications and other types of informal correspondence, but they will also be valuable resources when it comes to developing targeted search terms that will hopefully cull down massive amounts of data to a manageable and relevant core. Because modern document reviews involve massive amounts of email correspondence, it is important to craft search terms that capture informal usage or slang terms for certain concepts, such as “kickbacks” and ‘bribes’.

Native speakers will be the best resource when developing these search words and phrases, and they should be consulted throughout the drafting process. For languages such as Chinese, consider which regional dialects will likely be used in the materials being reviewed, and try to include at least one or two reviewers who are conversant in that specific dialect.

In absence of the elusive “smoking gun” document or communication that captures the issue, the success of an investigation will often hinge on witness interviews. A cooperative witness or whistleblower can dramatically improve the review team’s ability to gather facts and evidence, so it is important to approach the interviews with sensitivity towards the cultural differences that could potentially derail a face-to-face meeting.

Undoubtedly, the majority of interview preparation should focus on familiarizing oneself with the key interview exhibits; however, it is a good idea to spend some time reviewing local customs and business etiquette prior to walking into the first meeting. For example, a common misstep for many US lawyers can be attempted use of humor to break the tension of an uncomfortable moment. The use of humor or sarcasm at a business meeting in a foreign culture can often backfire and set a negative tone for the remainder of the meeting. It is important to keep in mind that a comment that would likely generate a laugh from the average American might deeply offend the witness with whom the attorney was hoping to establish an atmosphere of trust.

While many FCPA lawyers consider face-to-face interviews to be an invaluable opportunity to assess witness credibility, a lawyer’s ability to read a foreign witness’s body language can depend largely on one’s level of familiarity with local norms.

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