Responding to Interrogatories with Foreign Language Documents
Chinese to English Certified Translation Services
Chinese to English certified translations of legal documents are generally required in litigation. However, courts have held that a party producing documents under FRCP 34 need not provide an English translation if those documents are in a foreign language. Does the same hold true when a party produces foreign language documents under FRCP 33(d)? The following case – Luxottica Group S.p.A. and Oakley, Inc. v. Yiwu Curia Trade Co., Ltd. and Yiwu Cute Jewelry Co., Ltd., 2023 WL 6520213 (N.D. Ill. Oct. 5, 2023) – shows that the courts may hold differently under FRCP 33(d).
Trademark and Patent Infringement Action
This case involves a trademark and patent infringement action filed by eyewear company Luxottica and its subsidiary Oakley against two Chinese companies. The eyewear companies allege that the two Chinese firms illegally sell infringing and/or counterfeit sunglasses and gloves via its website. The eyewear companies allege violations of the Lanham Act (15 U.S.C. § 1114), the Patent Act (35 U.S.C. § 271) and the Illinois Uniform Deceptive Trade Practices Act (815 ILCS § 510).
The parties are involved in discovery and they dispute the sufficiency of the Chinese companies’ responses to interrogatories and requests for production. The Court’s opinion solely involves a decision on a motion to compel filed by the eyewear companies. Luxottica and Oakley claim that the Chinese companies are deficient in their discovery responses and want the Court to order them to fully respond to discovery requests. The Chinese companies argue that they have fully responded to Luxottica’s and Oakley’s requests and that any remaining requests are overly broad and/or request irrelevant information.
The eyewear companies seek information and documents concerning: (1) the Chinese companies and their businesses; (2) their procedures, product listings, sales and suppliers; (3) other litigation the Chinese companies were involved in; and (4) English translations of Chinese documents produced in response to certain interrogatories.
First, the Court reviewed the standard on a motion to compel. FRCP 37 states that a party may file such a motion whenever another party fails to respond to a discovery request or the response is insufficient. Case law indicates that the courts have broad discretion in resolving discovery disputes and they adopt a liberal interpretation in doing so. The Court also noted FRCP 26, which states that parties may obtain discovery of any non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case. Evidence does not need to be admissible to be discoverable and relevance focuses on the claims and defenses.
Requests for Production of Chinese Documents
The eyewear companies made requests for certain documents and claim that the Chinese companies have not produced all documents. The eyewear companies requested every domain name or online marketplace the Chinese companies use, invoices from suppliers for the purchase of allegedly infringing products, documents related to retention of documents and any litigation hold, documents related to the sale of products by supplier on the Chinese companies’ website, documents related to payment for and storage of allegedly infringing products, documents related to their relationship with suppliers regarding the sale of products and documents related to excess inventory.
The Chinese companies claim they produced all available documents and/or that no other documents exist. The Court reviewed the responses and agreed with the Chinese companies. However, the Court required the Chinese companies to provide a sworn certification that no other responsive documents are within their possession, custody or control. The Chinese companies were also required to supplement responses where they originally indicated that they are still searching for documents.
Requests Related to the Chinese Companies’ Business, Financials and Sales
The eyewear companies also requested that the Chinese companies identify the owners and operators of their internet store and financial accounts. They also requested that the Chinese companies produce all documents (including registration documents and email addresses) associated with the internet store and financial accounts. The Chinese companies produced a business license, identified the owners and their respective interest as well as two financial accounts.
The Court held that the responses were insufficient, and the information sought was clearly relevant to the eyewear companies’ claims. The Court directed the Chinese companies to provide supplemental responses identifying the ownership interest of the business, the account information for PayPal accounts used for the internet store and the email addresses associated with the internet store and the financial accounts.
The eyewear companies had also requested documents related to the Chinese companies’ costs, revenues, and profits as well as monthly financial statements from 2019 to 2022. The Chinese companies produced a transaction log for the sales of sunglasses and gloves and single entries of one sale of the gloves and sunglasses subject to the current case. They argue they only need to produce financial information related to the allegedly infringing products and that financials concerning the business as a whole are irrelevant to the eyewear companies’ claims.
The Court disagreed explaining that the Lanham Act allows a plaintiff to recover actual or statutory damages. When awarding statutory damages, the Court has discretion and can look at various factors including the size and scope of business operations to determine a baseline for damages. While statutory damages must have some relation to actual damages, financials as a whole are relevant to the inquiry.
In the same vein, the Court held that the eyewear companies’ requests for identification of the businesses and individuals offering products for sale on the Chinese companies’ website are relevant and must also be provided.
Requests Regarding Other Litigation Involving the Chinese Companies
The eyewear companies also requested all documents produced by the Chinese companies in a particular case involving e-cigarettes as well as all documents (including discovery responses, deposition transcripts, settlement correspondence and communications) related to any lawsuit against the Chinese companies for trademark infringement.
The Chinese companies produced 54 documents, but in response to the motion, they objected to producing any additional documents arguing that the information sought is irrelevant to the parties’ current claims and defenses.
The Court agreed with the Chinese companies. It explained that “cloned discovery” (i.e., requests seeking documents produced or received in other litigation) is generally disfavored. Additionally, the eyewear companies do not provide any explanation concerning how the documents from the other cases are relevant in the current case. For these reasons, the Court denied this portion of the motion to compel.
Request for English Translation of Chinese Documents Produced in Response to Interrogatories
FRCP 33(d) provides:
If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party’s business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by:
(1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and
(2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries.
In the instant case, the Chinese companies provided certain Chinese language documents in response to interrogatories without providing an English translation. FRCP 33(d) allows a party to rely on business records to answer an interrogatory, but only “if the burden of deriving or ascertaining the answer will be substantially the same for either party.” Since the business records are in Chinese and the eyewear companies would not be able to understand what the documents state, the Court ruled the burden is not substantially the same.
Therefore, the Court held that certified English translations of the Chinese documents must be provided.
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