You finally receive a long-awaited document production and are eager to dive in and find out what your opponent, the manufacturer of a drug or medical device, has memorialized in its internal documents. Except there is one glaring problem: the documents are all in German! Despite all your accolades, you are far from fluent in German, rendering thousands of pages of discovery virtually useless to you. Now what? If you have never litigated a case with a foreign corporation as a named party, you may be surprised to learn that the Federal Rules of Civil Procedure do little to assuage the language barriers you are likely to encounter along the way. These language barriers can peak during discovery, persist through trial and burden both sides alike without regard to party lines. With increasing globalization and e-commerce placing more products from foreign corporations in the hands of U.S. customers, the lack of federal guidance on this issue may soon warrant the attention of the Judicial Conference, the U.S. Supreme Court and Congress. In the meantime, there are steps you can take to overcome the language barriers that can leave you and your opposition on different pages when it comes to more than just your legal positions.

Scarce Guidance from the Federal Rules. The Federal Rules of Civil Procedure are silent on and thus impose no requirement on foreign parties to produce English documents in response to discovery requests stemming from actions in U.S. federal courts. Fed. R. Civ. P. 34(b)(2)(E) expressly allows corporations to produce responsive documents as they are “kept in the usual course of business …” Practically speaking, the federal rules authorize a foreign party to produce thousands of documents in multiple languages so long as they are normally maintained that way. In the absence of a clear mandate to the contrary, district courts interpreting Fed. R. Civ. P. 34 have repeatedly held that absent extenuating circumstances a producing party is not required to translate every foreign language document they produce or otherwise bear the costs of translation, see e.g., Toyo Tire & Rubber v. CIA Wheel Group, 2016 WL 6246383 (C.D. Cal. 2016) (denying the plaintiff's motion to compel translation citing “a long line of cases has rejected the argument that a producing party should be compelled to translate its foreign-language documents”); Nature's Plus Nordic A/S v. National Organics, 274 F.R.D. 437 (E.D.N.Y. 2011) (finding “no basis to shift the obligation” of translation to the producing party); In re Fialuridine (FIAU) Products Liability Litigation, 163 F.R.D. 386 (D.D.C. 1995) (“party cannot impose the cost of translating documents that exist in a foreign language on the producing party.”) At most, district courts have held that the producing party must provide only the translations it has previously obtained and only if disclosure to opposing counsel would not otherwise violate work product or attorney-client privileges. Thus, while federal court proceedings must be conducted in English, it is squarely up to the parties, namely the requesting party, to develop the process by which foreign documents will be translated into English.

Both sides have an interest in reliable, cost-efficient translations. Unless opposing counsel happens to be fluent in the foreign language at issue, counsel for both sides need reliable, cost-efficient English translations to gain a complete understanding of the litigation. This is particularly true if there is any possibility, however remote, that either party will seek to mark a foreign language document as an exhibit in a deposition or introduce it into evidence at trial. This shared interest is most significant when there is a large volume of foreign discovery or if the cause of action centers on a technical interpretation of a document such as a contract. Thus, while it is a well-settled principle that the requesting party generally bears the cost of discovery, including any special attendant costs, the parties should strive to develop a uniform translation process with due consideration given to a cost-sharing mechanism. As a practical matter, a good starting point may be for both sides to agree that they will use the one commercial translation company to provide a “rough” translation of all foreign language documents. Thereafter, each party can independently decide which documents it deems worthy of a certified translation.

Certified translations are a must. Documents provided to federal courts in a language other than English must generally be accompanied by an English translation that is certified as true and correct by the translator. In addition to ensuring admissibility, both sides grappling with foreign language discovery have a clear interest in avoiding or at least minimizing disputes about the accuracy of a translation. While there is no federal “standard” for certified translations, a certified translation generally carries a sworn, notarized statement from the translator attesting that he is fluent in both the foreign language and North American English and that to the best of his knowledge, the translation is a true, full and accurate translation of the specified document. With increased reliability, however, comes increased cost. Certified translations can often cost upwards of $1,000 for a single particularly complex or lengthy document. Absent a cost-sharing agreement, both sides may needlessly expend time, money and resources obtaining certified translations of the same documents.

Anticipate that there may not always be one “right” translation. Not every foreign word has a direct English corollary. Other foreign words have multiple English corollaries. As a result, it is likely that even the most capable and qualified translators will produce two different translations of the same document. In some situations, the differences can be minimal or immaterial. In others, it can serve as a crude reminder that we operate in world where even the placement of punctuation can tip off a legal battle. If, for example, a plaintiff is asking a defendant to admit that an internal document makes a damning confession that is of paramount importance to his or her theory of liability, differing translations of a single operative word can and will lead to a roadblock that cannot easily be resolved through motion practice. The only conceivable way to eliminate the potential for competing translations is for both sides to agree at the outset of the litigation that they will use one certified translation company for all documents and, absent extenuating circumstances, accept those certified translations without objection.

Organization is paramount. Organization takes on an especially significant role when dealing with foreign discovery. At the outset and continually throughout discovery, it is critical that each side methodically identify and isolate the documents that will be translated. When the translated document is used in a pleading, deposition or trial, the “source” document, meaning the original untranslated document produced in discovery, should always accompany it. In litigations involving hundreds of foreign language documents, this practice serves to eliminate ambiguity about whether the document was originally in English or whether it was translated by one or more parties at some later date.

While the federal rules provide little guidance on how parties should tackle foreign discovery, cooperation and common sense can lessen the need for judicial intervention and streamline a potentially cumbersome process. There is enough room for conflict in complex litigation. The least we can do is make sure everyone is speaking the same language.

Paola Pearson is an associate at Anapol Weiss. She is fluent in Spanish and focuses her practice primarily on catastrophic injury cases and class actions as well as mass tort litigation.