In 2017, Volkswagen pled guilty to criminal charges for misleading authorities on the emissions produced by its diesel cars. As a result of this case, the Volkswagen “Clean Diesel” Marketing, Sales Practice, and Products Liability Litigation case was a shareholder class action in which the plaintiffs sought the production of email messages dating back to 1999.1
Magistrate Judge Jacqueline S. Corley’s opinion on determining German search terms in the Volkswagen Clean Diesel litigation can be described as “sehr gut” (or “very good” to us non-German speakers).
The discovery dispute centered on the term “akustikfunktion,” which Volkswagen used internally to refer to the defeat device used in the “clean diesel” vehicles. The term means “acoustic function” in English. Volkswagen agreed with the Plaintiffs that emails containing the term could be relevant, but took the position that the scope of discovery began in May 2006. The Defendants justified this position with the fact that it was admitted in a plea agreement that certain supervisors first contemplated using the defeat device in “clean diesel” vehicles.
The Plaintiffs countered that the CEO of Volkswagen was the CEO of Audi in 1999, when Audi engine developers created software that could alter emissions features during testing. The Defendants offered to search the CEO’s emails going back to 1999, which the Plaintiffs claimed was insufficient, because at least two additional custodians who were the CEO’s top aides would need to be included in the search.
The Court held that searching the three custodians email going back 18 years for the single search term of “akustikfunktion” was proportional to the needs of the case. While the time period to search was large, the request was narrowly tailored. Moreover, the Defendants did not offer any evidence that there would be a significant number of responsive documents to the discovery request. As such, the Court granted the Plaintiffs’ motion to compel.
How to Search 18 Years of Email in German
Searching 18 years of email in German, or as my high school German teacher would say, “Achtzehn Jahre E-Mail in Deutsch,” on its face sounds like an ediscovery story written by the Brothers Grimm. There could be challenges in collecting email messages from 1999, with messages likely created in different formats over the years. However, there is no need to fear die Brüder Grimm of ediscovery, because the actual search of the German data is very straightforward.
Der tapfere kleine Rechtsanwalt
The first step in reviewing German data is for the collected email to be uploaded in Everlaw. An admin will need to enable Machine Translation under “Settings” and add German under “Expected Languages.” (For an in-depth discussion on foreign language review in Everlaw, please see Machine Translation: Reviewing Foreign Language in Ediscovery).
In order to build a search for the keyword “akustikfunktion,” a reviewer would need to click the search term “Contents” in the query builder and enter “akustikfunktion” as the search term. The search should then include metadata date range of 01/01/1999 to 01/01/2018. Additional metadata search filters can be added for the specific individuals whose email needs to be searched, and further narrow the file types to be searched to Email.
The search hits can be reviewed for responsiveness. Attorneys can navigate through search hits within a document or select “Auto Translate” to replace all of the German text with the English translation. Emails that are responsive can be issue coded for production.
Als das Kind ein Kind war, war es die Zeit dieser Fragen
The angel Damiel in the 1987 German film “Wings of Desire,” explored the existential questions of what it means to be human. The film is also excellent for students studying the German language, rich with quotes. A lawsuit with foreign languages can find lawyers asking themselves similar questions of what does this all mean? (Granted, minus the dramatic black and white storytelling.)
The ability to search German emails with German search terms and translate the results into English can empower lawyers to find responsive discovery without retaining multilingual attorneys for document review. Moreover, searching nearly 20 years of email is not as daunting as it sounds. Yes, that is a long time, but if only looking for emails from three people, with one specific search term, the workflow to identify responsive discovery is nicht schwierig.
1In re Volkswagen “Clean Diesel” Mktg., Sales Practice, & Prods. Liab. Litig., 2018 U.S. Dist. LEXIS 4522 (N.D. Cal. Jan. 9, 2018).