The increasing globalization of business, through Internet-based commerce and the activities of multinational corporations, has made it more likely than ever that litigators in U.S. courts will be confronted with documents written in languages other than English. These might be business records, contracts, patent descriptions, internal e-mail communications, or – due to liberal pretrial discovery rules in the United States – any other possibly relevant document or a document that might lead to a relevant document.

A foreign party in litigation may lawfully produce documents written in languages other than English – so long as the documents are normally created and stored in a language other than English. The party producing the foreign language documents is not required to translate them or bear the costs of translation.

Foreign-language documents present novel practice issues for litigators in federal courts. Unlike foreign-language testimony given during a deposition, which is typically translated in real time by a sworn, certified interpreter, foreign-language documents will most likely be translated months or years after their creation.  Importantly, there is no legal requirement that foreign-language documents be translated into English before they are turned over to the opposing party during pretrial discovery. However, there is a legal requirement that documents introduced at trial – or used in depositions – be translated into English. Navigating from Point A (“pretrial discovery of foreign-language documents”) to Point B (“use of foreign-language documents at trial”) may in many cases require considerable advance planning and creativity on the litigator’s part and the use of a third-party document translation service.

Different Rules for Discovery and Trial

Let’s begin with the end in mind. In order to be introduced as evidence in U.S. federal courts, all foreign language documents must be translated into English by a certified language translator. This much seems clear.

According to one court, United States v. Diaz, 519 F.3d 56, 64 (1st Cir. 2008), “the submission of foreign-language documents unaccompanied by English translations is error and in ordinary circumstances would bar those documents from consideration by the court.”

But … and here’s the problem: There is no legal requirement that foreign-language documents produced during discovery be translated into English. It is entirely possible that an opposing party located outside the United States will produce documents that are unintelligible to English-speaking litigators.

Rule 34 of the Federal Rules of Civil Procedure governs the production of documents and electronically stored information during pretrial discovery in the federal courts. According to Rule 34(E), a party must produce documents “as they are kept in the usual course of business” or “in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.”

As a result, a foreign party in litigation may lawfully produce documents written in languages other than English – so long as the documents are normally created and stored in a language other than English. The party producing the foreign language documents is not required to translate them or bear the costs of translation.

Having obtained untranslated foreign-language documents in discovery, the litigator has two distinct reasons for translating the documents into English:

1. to understand their meaning and evaluate their relevance and usefulness in the litigation, and
2. to prepare the documents for introduction as evidence at trial (or as an exhibit during a deposition).

In the former case, computer-generated translations created by document management platforms or other similar machine-translation technologies may be sufficient for pretrial discovery purposes. For situations in which greater accuracy is required, litigators should consider delegating document translation responsibilities to contract attorneys or third-party vendors that specialize in document translation.

However, if the document is to be introduced into evidence in a federal proceeding (or used as an exhibit in a deposition), then, under Rule 901 of the Federal Rules of Evidence, the party offering the document must “produce evidence sufficient to support a finding that the item is what the proponent claims it is.”

There is no hard and fast rule describing exactly what Rule 901 demands. A certified translation appears to be necessary. In Jack v. Trans World Airlines, Inc., 854 F. Supp. 654, 659 (N.D. Cal. 1994), a federal trial court ruled that the foreign-language document must be translated into English and the translation must be authenticated by sworn testimony vouching for the accuracy of the translation and describing the translator’s qualifications and expertise.

Litigators should not assume that the cost of translation services can be shifted to the losing party at the conclusion of the case. Ordinarily, parties in federal litigation are expected to bear the costs of litigation. Whether or not translation costs are taxable is subject to the discretion of the trial court. See Trustees of Boston Univ. v. Everlight Elecs. Co., 392 F. Supp. 3d 120 (D. Mass. 2019), and E. Boston Ecumenical Cmty. Council, Inc. v. Mastrorillo, 124 F.R.D 14 (D. Mass. 1989), collecting cases that weigh taxation of translation and interpretation expenses.

Possible Efficiencies and Solutions

As with most practice challenges during pretrial discovery, the need to obtain translations of foreign-language documents is an area where creative and well-prepared litigators will shine. Possible solutions to common language-translation hurdles include:

• Anticipate the possibility that documents produced during pretrial discovery may not be written in English and have a plan for obtaining document translations.
• Secure agreement with opposing counsel on the use of a shared, certified provider of document translation services.
• Seek out agreement with opposing counsel on protocols to manage document translation chores as well as processes for handling disputes over the admissibility of translated documents.
• Factor additional time for obtaining document translations into pretrial discovery schedules and deposition protocols.
• Lower evidentiary hurdles by securing from opposing counsel stipulations to the accuracy of translated documents.

By proceeding in this fashion, attorneys can streamline case management chores associated with foreign-language documents and win for their clients an efficient and speedy conclusion to the litigation.