November 30, 2020 Practice Points

Working with Foreign-Language Documents in Depositions and Trials

Preparation is key to overcoming the language barrier.

By Cara A. Cox

Whether it is a simple lease, or troves of emails regarding complex patents, foreign-language documents will likely present themselves in one form or another to most attorneys during their careers. Given that there is a language barrier with such documents, learning how to handle foreign-language documents in a deposition or at trial is another skill for which we must all be prepared.

Records in a foreign language vs. foreign records. Before delving into how to handle records in a foreign language, it is important to note that we are not discussing how to handle foreign records. Foreign records, including their admissibility, are governed by Rule 44(a)(2) of the Federal Rules of Civil Procedure and Rule 902(4) of the Federal Evidence Code, and Rule 902(3) would be implicated where the foreign record is a copy of an original.

Early-discovery considerations. At the outset of discovery, it is advisable to remember to request for the production of documents not only in English but in the respective foreign language. This can be done by clearer instructions in interrogatory requests or document-production demands. Not only does this ensure that you are provided all relevant documents but also that you may assist with translations when documents are presented at depositions or trial. Additionally, if foreign-language documents are anticipated, it is advisable to retain translation services so that documents can be translated as they are received and thus reduce delay times prior to depositions or trial.

Foreign-language records at depositions. When it comes to handling foreign language at depositions, it is best to establish and agree to protocols with your opponent early on in a case where it is anticipated there may be complex, or a large quantity of, foreign-language documents. This includes developing and agreeing to a contingency plan when there is a delay in providing translated documents to avoid motion practice that may prolong the discovery process. Additionally, consider the potential witness and their capabilities of testifying in English or the respective foreign language.

Protocols and agreements are pivotal especially nowadays with many federal and state courts either slowing down or suspending in-person proceedings. An established protocol can avoid repeated and late productions of documents during discovery. However, if leaning against providing advance translations of exhibits to be used at depositions, be aware that if translated documents are not produced beforehand, then the witness will be required to review them for the first time on the record. Accordingly, this will cut into valuable deposition time that is instead used for the witness to review documents. It would also be advisable for parties to agree to permit objections to translations longer than the normal timeframes.

Foreign-language records at trial. While it may seem daunting to present documents in a foreign language to a jury, it is manageable as long as you are prepared. To start, you should not only review the English translations of the documents to be presented before trial, but also set aside time before trial to review the documents with your witness or witnesses that you plan to have testify about the documents. Next, when it comes to foreign-language documents at trial, keep in mind that it is the duty and burden of the offering party to have the document translated into English per Federal Rule of Civil Procedure 34. Therefore, if a party fails to have a document translated, a court is permitted to refuse to admit into evidence a document without its accompanying English translation. While preparing for trial that will involve foreign-language documents, be aware of the relevant timelines outlined by state rules about when the original (or copy of an original) foreign-language document, its translation, and affidavit or declaration by a qualified translator must be submitted. This is especially critical due to the effect on a possible appeal. Per the Federal Rule of Appellate Procedure 10, when a district court accepts foreign-language documents without the required English translations, the appellate court cannot consider the untranslated documents on appeal. Accordingly, be sure to keep all originals or copies of the foreign-language documents, translations, and translator affidavits organized in the event that the case is appealed.

Cara A. Cox is an attorney with Hurwitz & Fine, P.C., in Buffalo, New York.

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