Admissibility of Foreign Documents in U.S. Litigation

Personal Representative of Decedent’s Estate Seeks to Exclude Israeli Documents Not Professionally Translated

It is not unusual for the legal translation of foreign documents written in languages other than English to become an issue in litigation in the United States. The translation of foreign documents has been a factor in both criminal and civil cases, including those in the area of probate, intellectual property, worker’s compensation, GDPR, family law, bankruptcy, immigration law, maritime and commercial law, and essentially any area of law.

In the case of Agami v. Agami, the issue of the legal translation of foreign documents arose in a contract dispute between two Israeli brothers, one of whom had died. The deceased brother’s son, as representative of his father’s estate, claimed damages for breach of contract by his uncle against his father. The contract was written in Hebrew. The issue for the court was the interpretation of the contract and the rights of the respective brothers under the contract. Such circumstances are not particularly uncommon when someone from another country dies in the United States with a distributable estate, the relevant documents for which may be written in a foreign language.

Although the contract was written in Hebrew, it had been translated into English. The contract was not the problem. The problem was that, as part of his asserted affirmative defense and counterclaim, the surviving brother sought to submit into evidence documents from the Israeli Tax Authority, which also were written in Hebrew but were not translated into English.

The estate of the deceased brother filed a motion in limine, seeking to exclude as evidence the untranslated Israeli tax documents that were relevant to the contract dispute. Thus, the issue for the court became the admissibility of foreign documents that were not translated into English.

Two Brothers, Two Contracts, Two Languages

On April 3, 1994, two Israeli brothers—Leon and Meir Agami—entered into a partnership agreement (titled “Power of Attorney”), pursuant to which Meir would contribute $80,000 to the partnership to invest in a real estate venture with his brother, Leon. The agreement was written in Hebrew. The real estate interest was in Wisconsin and was called “Wisconsin Dells.” In return for his $80,000 capital investment, Meir was to receive a 40% interest in the Wisconsin Dells venture.

On April 15, 1994, the brothers executed another agreement, written in English, which provided that if the real estate investment in Wisconsin Dells were to fail, Meir would be entitled to his brother Leon’s interest in an apartment complex that Leon owned in Bat Yam, Israel. However, if Meir were to exercise his option to acquire Leon’s interest in the Bat Yam apartment complex, he would forfeit his 40% interest in Wisconsin Dells.

Leon used the $80,000 to invest in commercial retail property in the United States. Meir never exercised his option to acquire his interest in Leon’s Bat Yam apartment. Instead, Leon sold the apartment and used all of the profits to purchase other real estate property for himself. However, for almost every year from 1994 to 2015, Leon wired approximately $24,000 to Meir as his profit in the real estate venture.

Claims for Breach of Contract

Meir died on April 21, 2016. As the personal representative of his father’s estate, Meir’s son, Zachi, brought several claims against his uncle, Leon, including breach of contract, conversion, unjust enrichment, constructive trust, violation of Florida’s Deceptive and Unfair Trade Practices Act, and accounting, and attorney fees. Zachi asserted that Leon used the profits from the sale of the Bat Yam apartment, which was to serve as collateral under the terms of the original agreement, and parlayed the profits from the Wisconsin Dells venture into other real estate interests without accounting to his brother, Meir, or paying Meir his 40% share of the profits.

An Affirmative Defense Supported by Foreign Documents

As part of his defense, Leon claimed that upon obtaining his brother’s $80,000 and returning to the United States, his accountant advised that Meir, who was in Israel, could not be a partner in a U.S. business and that, if Leon were to pay Meir any profits, Meir would have to pay taxes in the United States and in Israel. Leon claimed that, as a result of this information, he and Meir orally agreed in a telephone conversation that they would not proceed with the partnership under the terms of the original agreement as planned but that, instead, they agreed that Leon would send Meir $24,000 every year as a family “life support” payment.

In support of his affirmative defense, Leon submitted nearly 400 pages of supplemental documents, some of which were untranslated documents written in Hebrew, including documents originating from the Israeli Tax Administration.

A Motion in Limine to Exclude Untranslated Foreign Documents

Meir’s Estate filed a motion in limine to exclude Leon’s testimony about the oral agreement with Meir to change the terms of their original agreement, as well as Leon’s testimony summarizing his accountant’s interpretation of the Israeli Tax Code, and other evidence, including the documents from the Israeli Tax Administration that were not translated into English by a professional translation service.

The Court’s Decision

On February 14, 2019, the 11th Judicial Circuit for the Circuit Court of Florida held that the plaintiff’s motion in limine was denied with respect to excluding the brothers’ oral conversation about altering the terms of their original agreement, as well as testimony summarizing the Israeli Tax Code. But the court granted the motion in limine with respect to excluding evidence of previous litigation involving the plaintiff, which the court deemed to be irrelevant to the instant case.

With respect to the Hebrew documents from the Israeli Tax Administration that, at the time, had not been translated from Hebrew to English, the court denied the plaintiff’s motion in limine as moot because, in the interval between the plaintiff filing the motion in limine and the court’s decision, the documents were translated from Hebrew to English by a professional translation service. However, the court’s holding implies that if the documents had not been translated by a professional translation service, the court would have granted the plaintiff’s motion in this respect and excluded the Hebrew documents as evidence in the case.

When litigating in the United States in any case involving any type of relevant document written in a foreign language, you should always have a professional translation service translate and certify the documents in preparation for litigation. All Language Alliance, Inc. is available to certify the translation of documents from Hebrew, Norwegian, German, Swedish, French, Simplified Chinese, Portuguese, Russian, Spanish, Traditional Chinese, Korean, and other languages to English. We also provide deposition interpreters fluent in Hebrew, Norwegian, Swedish, Mandarin Chinese, Russian, Korean, Spanish, and other different languages. Call us at 303-470-9555, or email us on our website at www.languagealliance.com, to arrange professional, certified document translation services.

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