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HomeWritingsIt's 2:00 in the Morning. Do You Know Where Your Translation Is? July 7, 2009: It's 2:00 in the Morning. Do You Know Where Your Translation Is? by William Lise Executive Summary:  Some translation companies claim to be able to handle anything you throw at them. Their secret could be their willingness to give your documents to unknown translators in unknown (and unknowable to you) venues who might not be native-level capable in either English or Japanese. This is a recipe for problems. There are, however, strategies that can help you out of this situation. You are faced with a pile of discovery documents produced to you by a Japanese party in litigation, or you have a number of Japanese patent documents that could include a killer piece of prior art that can be used to invalidate a patent that your client is accused of infringing or that you wish to preemptively oppose before accusations of infringement. You instruct a paralegal to have the Japanese documents translated into English. The paralegal places an order for the Japanese-to-English translation with a translation provider that you have been using. The translation company, typically not having the required in-house translation capability to handle the job, immediately places an urgent request onto various places on the Internet and sends e-mail inquiries to numerous translators, some of them entirely unknown to them, in an effort to find a translator to do the job. Often the translation company splits the work between multiple translators, sometimes including even splitting a single large document between several translators. Recently, the translation company's search on the Internet for translators can lead them to an offshore venue such as India or China to have your translations done. This scenario happens daily. It is highly unlikely that the final consumer of the translation even vaguely suspects that the work might have been given to a translator completely unknown to the translation agency before the job was sent out and working in a country completely unknowable to the attorney. Should you want to know who is providing you these services? Yes, we think, for a number of good reasons. Just Words? Although you could say that translations are "just words," your efforts in representing your client are built on "just words" that represent facts. Don't you and your client disserve the best words? Translation is Not a Commodity By treating translation as a commodity, the one-size fits all approach of the high-volume translation providers does a disservice to both the translation practitioner and the user of translations. The reality is that one translator and the translations produced by that translator are not interchangeable with another translator and that translator's product. And there is no convenient website to access to learn what the market price is for Japanese-to-English translation today, as there is for real commodities such as wheat or sugar. Each translator has his or her level of ability to translate. Sometimes it is sufficient for the task of translating your documents; sometimes not. Who is doing your translation should matter to you, unless quality does not. Read more Is There an Advantage in Dealing with Nameless Translators in Unknowable Locations? Few clients for legal services would wish to proceed with a law firm without having any specific information beforehand about the attorney who will provide those services. Similarly, an attorney will very rarely retain an interpreter for depositions without knowing who the interpreter is. It is just common sense. In the case of translation, however, it appears that such common sense is often discarded. Clients are told by translation companies that all they need to do is send their Japanese documents; they will do the rest. Almost never, however, is there any information available about the translator or about the venue in which the translation is being done. Clearly, this isolation of the actual practitioner (translator) from the client sacrifices some benefits (such as being able be vet potential translators) that can only be achieved by translator-client contact, at least via the translation provider, while also raising potential issues of confidentiality in the case in which work is sent to unknowable (to you) countries to be translated. Where Do Some Translation Providers Find These Mystery Translators in Unknowable Lands? Relative to the huge amount of work they take on, most translation companies have very little in-house translation capability--in some case almost none in the language pairs you are working with--and rely almost exclusively on translators who they have never met. Typically, upon receipt of a large order for translation of Japanese discovery documents they will scramble to the Internet to find translators. They often reach out to translators with whom they have never worked. That reach extends to countries in which translators working between Japanese and English often have native-level skill in neither Japanese nor English. The results are predictable, but it might take a while for problems to surface. We see this happen when an attorney is examining a witness in a deposition based on documents that have been poorly translated. The Difficulty of Working in the Dark is a Problem for Both the Translator and the Client A byproduct of the efforts of translation companies to place a firewall between their translators and the client is an increase in the risk of poor quality. Professional translators who take pride in their work ask questions that should be posed to the client. A value-added translation provider should at least act as a conduit for these questions. Are you receiving questions about the documents you are having translated? If not, it is not necessarily safe to assume that everything is alright. Hiding the Translator's Location Raises Potential Issues of Confidentiality When you have a translation company sign a protective order or NDA, it is natural to expect the translation provider to impose the same conditions of confidentiality on its subcontractors. But is that a realistic expectation if the documents have been sent to a translator or translation company in India, China, or a Southeast Asian venue? What recourse does your translation provider (or you) have if a subcontractor they use in one of these venues does not honor the obligations of the protective order or NDA? Can You Rely on Poorly Done Translations When Deposing a Japanese Witness? Our experience with interpreting depositions clearly indicates that, in many cases, the deposition interpreter assisting the examining attorney is the first person to discover that the documents being relied upon by the examining attorney are poorly translated or even mistranslated. Sometimes a translation into English of a document produced in Japanese is so poorly done that that it literally leaves the interpreter speechless while trying to find a way to interpret a very poorly done Japanese-to-English translation cited by an attorney back into comprehensible Japanese for the witness. This does not have to happen. What Happens When You Need Certified Translations For Presentation as Evidence? If a translation done by an unknown and unknowable translator in an unknowable venue turns out to be valuable enough to present as evidence, you might need a certified translation. However, you might not require the certified translation until months after the original translation was done. Will the translation be certified by the same translator? Perhaps not. A translation provider wishing to hide the translator's identity from the client is not likely to reveal that information when a certified translation is required. What is more likely to happen is that another translator (or perhaps even a non-translator), one whose name is "safe" to reveal to the client because he or she is part of the management of the translation company, will execute a translation certification. Sometimes the certification is worded using such phrases as "this translation was done by a qualified translator," thereby enabling even someone who is not a translator to "proxy" the certification. Even in the cases in which the certifying person is a translator, however, unless that translator participated in the execution or checking of the original translation, a proper certification would require a great amount of work. Again, this does not need to happen. Some Strategies to Help You Out of This Situation Some strategies that can be useful are (1) allocating more resources to triaging before documents are sent out for translation, and (2) using translation providers who at least do not hide the location and specific qualifications of the translators doing your work and enable their translators to ask questions of you. However, given that the large volume of documents that are produced in patent litigation in the US makes it unlikely that you will be able to completely to avoid low-quality translations at the initial stages of document translation, another strategy that promises to be even more effective is that of adopting a two-tier translation approach. Rediscovering the Advantages of Two-Stop Shopping Although critical translations such as those of prior art documents should be left to a higher-quality translation service provider from the start, the situation with discovery documents is that there are probably going to be times when you will need to use a translation service that specializes in providing sometimes quite rough translations for some of your documents. Given this, one reasonable approach, illustrated above, is to use that type of provider for the initial bulk translations and assign more important documents, including certified translations, to a translation service provider (such as Lise & Partners) which can provide high-quality translations done by identified translators working in identified locations. In short, there is a distinct advantage to discarding the notion that one translation provider can provide any translation you need. It simply is not true.

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