Wed, Aug 18, 2021

Expert Reports - The Dangers of Relying on Document Translations

I have recently been engaged to produce an expert report involving a dispute between a large French business group and a specialist UK-based software supplier. The French company, the claimant, was embarking on the replacement of its legacy IT system; replacing it with a unified ERP system supplied by the specialist UK-based supplier.

IT Group, which was acquired by Kroll in 2020, was instructed by a UK-based law firm acting on behalf of the insurers to the UK-based supplier. A French expert was engaged by the other party acting for the claimant. Evidential documents supplied were a mixture of both English and French documentation. Fortunately, I have an advanced level of French language skills and, on the face of it, language did not present too much of an obstacle in completing this dual language assignment.

The first French expert report was submitted with a translated copy supplied via my instructing solicitors. As part of my instructions to complete my report, I was required to address the French expert report and relied on the translated version. In reliance on this translated document and based on comments made by the French expert, I drew a number of conclusions. It later emerged after the French expert submitted his second report that some of my conclusions proved to be slightly erroneous and misleading because of a mistranslation of specific words in the translated French expert report. Under normal circumstances mistranslations are undoubtedly quite common and have little impact on the overall meaning and understanding of written works. However, in the context of a technical report, mistranslations have the potential to be more serious as I shall demonstrate below with a couple of examples:

  1. The French expert referred to the software solution as “pouvant ȇtre déployée.” Correctly translated, this should mean the software was in a position to be deployed. In the context of a software development project, deployment refers to the act of moving software from one controlled environment to another. There are a number of environments created during the software development lifecycle commencing with a development environment before the software is deployed sequentially to various other environments ending with the final production environment. When reading the French expert report, it is clear that what is meant is that the software solution had been developed (in the development environment) and was ready to be deployed in the next and subsequent environments. In the translated version of the French expert report, the software was referred to as “ready to use.” Aside from the fact that this term, in a technical sense, has limited meaning and use in software development, it also could imply that the software had been deployed in the production environment and was “ready to use” by business users. This was clearly not the case or the intended meaning in the non-translated version of the French expert report.

  2. The French expert report, in the context of the overall project, refers to the term “maître d’ouvrage.” In this case, there is a clear and unambiguous meaning to this term, and this refers to the project owner (contracting authority). In the translated version of the French expert report, this term was referred to as the “project manager.” There is a fundamental difference between the meaning of a project owner and project manager. In project management, these are two different terms, and in this case, referring to a project manager, as opposed to project owner, changed the context and conclusions drawn.

These examples demonstrate that translation of foreign documents is not an exact science and the subtleties of different languages and meanings, especially in a technical document, can make it difficult to extract the exact meaning of words and terms. It should also act as a warning against blind acceptance and reliance on document translations and the benefits of having someone with “mother tongue” ability to give a second opinion on any documents supplied as a translated version.

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