The United States might not have an official language, but court proceedings are conducted in English. This is a statutory requirement for the U.S. District Court for the District of Puerto Rico. 48 U.S.C. § 864. Elsewhere, it seems to be custom enforced by the courts: “[i]t is clear, to the point of perfect transparency, that federal court proceedings must be conducted in English.” United States v. Rivera-Rosario, 300 F.3d 1, 5 (1st Cir. 2002).
Assume, then, that you will need to arrange translations for any foreign-language documents presented to the court, just as you will need to arrange interpreters for any foreign-language witnesses. Assume also that you will need to do this for any depositions because the default rule is that depositions are conducted under the same conditions as witness examinations at trial. Fed. R. Civ. P. 30(c)(1).
But while court proceedings are conducted in English, that does not mean that a party must translate foreign-language documents before producing them in discovery. The few courts to have addressed this issue have mostly concluded that requiring the producing party to include translations would violate the general rule that each party is responsible for financing the costs of its own suit. See Wagner v. Apisson, No. 2:13CV937, 2014 WL 6694792, at *1 (D. Utah Nov. 26, 2014) (collecting cases).
The case law on who pays for translations is surprisingly sparse, but the general rule seems to be pay to play: the party that wants to use the evidence should presume it will bear the cost of the translation. This follows in part from the general rule that a party is under no obligation to create translations before producing foreign-language documents. In addition, two of the courts to specifically discuss translations in the context of depositions have held that the party seeking the deposition must pay for the costs of interpretation and translation. See E. Boston Ecumenical Cmty. Council, Inc. v. Mastrorillo, 124 F.R.D 14 (D. Mass. 1989); accord Soto v. McLean, Nos. 7:96CV134BR2, 7:96CV135BR2, 1998 WL 1110688, at *2 (E.D.N.C. Jan. 30, 1998).
If you are the party that must incur these costs, do not assume that you can shift them to the other party if you prevail. The Supreme Court of the United States has interpreted the federal cost-shifting statute, 28 U.S.C. § 1920, as giving trial courts the discretion to award interpretation costs but not translation costs. Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 562 (2012).
The process for admission of interpreted testimony is simple: under Rule 604 of the Federal Rules of Evidence, “[a]n interpreter must be qualified and must give an oath or affirmation to make a true translation.” The process for admission of translated documents, however, is less straightforward. The most-cited case on this issue holds that a translation must be authenticated by sworn testimony describing the translator’s qualifications and expertise and affirming the accuracy of the translation. Jack v. Trans World Airlines, Inc., 854 F. Supp. 654, 659 (N.D. Cal. 1994). In practice, it appears that parties will frequently stipulate to the accuracy of translations in lieu of laying a formal foundation.
Particularly interesting, though, is that a dispute over the accuracy of a translation presents a jury question. Rivera-Rosario, 300 F.3d at 9.
Some privilege issues around translations are fairly clear. On the one hand, a document that is privileged or protected in its foreign-language original will also be privileged or protected in its English-language translation. On the other hand, good luck claiming work-product protection for a translation prepared in the ordinary course of business.
The gray area for privilege involves translations prepared at the direction of an attorney for purposes of litigation. Several courts have held that this qualifies as ordinary work product. But where some have upheld the claim of work-product protection, others have held that the inefficiency of requiring a second translation would outweigh any mental impressions or litigation strategy. In re Air Crash Disaster Near Warsaw, Poland, on May 9, 1987, No. MDL 787, 1996 WL 684434, at *2 (E.D.N.Y. Nov. 19, 1996) (requiring production); Nature’s Plus Nordic A/S v. Nat. Organics, Inc., 274 F.R.D. 437, 440 (E.D.N.Y. 2011) (requiring production); In re TFT-LCD (Flat Panel) Antitrust Litig., No. M 07-1827 SI, MDL No. 1827 (N.D. Cal. Jan. 21, 2010) (applying work-product protection).
The takeaway here is that you can claim attorney work product for translations that you directed to be prepared for purposes of litigation, but you cannot assume that it will be upheld.
Lessons from Litigating with Translated Documents
The previous sections were about what I learned about the law, but this section is about what I learned about the practicalities of litigating a case with foreign-language documents. (I will leave discussion of depositions and trial practice for another article.)
The first thing I learned is that some (if not most) modern document-review platforms allow for machine translation. These will not be mistaken for professional translations by fluent speakers, but I found that they were generally enough to understand the gist of the document and make a determination on relevance and privilege. Our opposing counsel agreed (more on this in a minute). Because foreign-language contract attorneys typically command a premium, using machine translations to conduct a review can create significant cost savings depending on the project size, even after accounting for the cost of machine translation itself.
The second thing I learned is that there are benefits to machine translation even if you do not use it to conduct the review. Members of the litigation team who are not conversant in the foreign language can obtain the gist of the document’s meaning. The machine translation can inform the decision about whether to obtain a professional translation admissible at deposition or trial. And at least some document-review platforms will allow the machine translation to be exported as part of a production.
The third thing I learned is that it is wise to start discussing translation and interpretation issues with other parties from the start. The parties might consider agreeing to include machine translations for foreign-language documents in their productions. They might also consider agreeing to a single shared vendor for professional translations to minimize disputes over authenticity and avoid duplicated costs. They might further develop a process for admitting translated documents at depositions and trial. Additionally, they might consider a process for resolving any disputes over translations.
These are not the only lessons that can be learned from working with foreign-language documents, nor are they necessarily the most important. But their relationship to the four key questions on foreign-language documents will ensure that I return to them each time I am engaged for a matter where they are relevant.