Who Pays for Translation of Discovery Documents?

Who Bears Translation Costs Incurred During Discovery?

We’ve blogged before about document translation costs during discovery. Disputes over who is responsible for covering the cost of translators and interpreters during discovery can become quite contentious. In the federal cases discussed below, the courts examined two typical translation disputes that arose during the parties’ exchange of interrogatories and requests for production of documents.

Who Bears the Cost of Translating Foreign-Language Documents Produced in Response to Written Discovery Requests into English?

In NY Machinery Inc. v. The Korean Cleaners, the plaintiffs filed a complaint in 2017 for unfair competition, false advertising, defamation, and other claims after the defendant published an allegedly false and defamatory statement about the plaintiff’s products.

The parties engaged in discovery and a dispute arose in 2019 when the defendants produced documents in response to plaintiff’s request for production of documents that were written in Korean or Japanese. The plaintiff requested that the defendants obtain certified English translations of the documents they produced during discovery. The plaintiffs alleged that the court subsequently ordered the defendants to provide plaintiffs with certified translations of the defendant’s document production by a certain date, but the defendants asserted that the court had not compelled them to get the foreign language documents translated. As a result of this dispute, the parties submitted a joint letter to the court concerning the issue of which party was obligated to translate the foreign language documents into English.

In a written opinion regarding the parties’ discovery dispute, the court noted that there was no clear answer within the Third Circuit as to who was responsible for bearing the cost of translating non-English documents. The court noted that F.R.C.P. Rule 34 does not address which party is obligated to translate documents received during discovery.

In its analysis, the court cited Nature’s Plus Nordic A/S v. Natural Organics, Inc., 274 F.R.D. 437, 439 (E.D.N.Y. 2011), a case in which one of the defendants sought an order asking the court to compel the plaintiffs to obtain translations for all non-English documents produced as part of the plaintiffs’ document production.

In that case, the court held that Rule 34 “does not provide the district court with any authority to direct the party producing documents to translate them and that such orders violate the well-accepted principle that each party bear the ordinary burden of financing his own suit…and that each party…is expected to bear any special attendant costs.” The court in Nature’s Plus also held that, absent a showing of prejudice for undue delay, the party responding to the document demand had no obligation to provide translations to foreign-language documents.

Thus, in accordance with Nature’s Plus Nordic A/S, the court in NY Machinery Inc. held that the defendants had no duty to translate foreign-language documents served in response to the plaintiffs’ document requests. Accordingly, the court denied the plaintiffs’ request to compel the defendants to translate the documents that it produced in response to plaintiff’s discovery requests into English. However, the court did note that in certain circumstances, a party may be obligated to pay for translation costs if the responding party produces irrelevant foreign-language documents in response to a reasonable request for production.

The case is NY Machinery Inc. v. The Korean Cleaners, Court No. 17-cv-12269, decided on January 6, 2020 in the U.S. District Court for the District of New Jersey.

Who Bears the Cost of Translating Interrogatories into Responding Party’s Native Language?

In In re Roberto Felice Donna, a bankruptcy case, the court addressed the issue of document translation costs regarding interrogatory responses. In that case, the plaintiffs filed a motion with the court seeking an order that the defendant be required to produce his discovery requests to the plaintiffs in Spanish so that the plaintiffs could understand them and respond accordingly. However, the court held that the plaintiffs were not entitled to have the defendant’s discovery requests translated into Spanish. In finding in favor of the defendants on this issue, the court explained the differences between translating depositions and written discovery, noting as follows:

“[i]n the realm of written discovery, no rule requires a party to serve a non-English speaking opposing party translations of discovery requests written in English. The law recognizes that interpreters of oral language and translators of written documents are different. Interrogatories or requests to produce documents propounded to a non-English speaking party can be translated in due course at some point after they are received. That makes them different from a deposition of a non-English speaking deponent, which requires an interpreter to be present on the spot to make the deposition work”.

The court went on to explain that the plaintiffs had “more than adequate” time after being served with written discovery to obtain a translation of the requests in order to provide an appropriate response. The court further held that “expenses, including any translation expenses, incurred by a non-English speaking party in responding to written discovery are an expense of the responding party. There is no requirement that a party supply to a non-English speaking opposing party translations of written discovery served on the opposing party.”

The case is In Re Roberto Felice Donna, Court No. 16-00091, decided on December 27, 2106 in the U.S. Bankruptcy Court for the District of Columbia.

In sum, in the cases discussed above, the courts held that the parties requesting the translation of documents were not entitled to have the documents translated at the expense of the opposing party, but were required to have the documents translated as needed at their own expense.

Contact legal document translation company All Language Alliance, Inc. to obtain certified translation of non-English documents from any foreign language to English for discovery and beyond. The most common languages we are asked to provide certified legal document translation services from are: Simplified Chinese, French, German, Dutch, Traditional Chinese, Korean, Hebrew, Swedish, Italian, Russian, Mandarin, Portuguese, Japanese, Dutch, Spanish, Norwegian.  In addition to delivering official translations of all manner of evidentiary documents, we have experience in providing certified translation services for Section 337 investigations which often involve multilingual e-discovery in more than one foreign language.

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