The question the other day on the PLAC listserv was, “Plaintiffs claim that our overseas client must produce English translations of all documents that are in its home country’s language. Are they entitled to this?”

That prompted well over a dozen “me too” messages – more than we’ve ever seen in response to that kind of question on that site. Such a response told us two things: (1) the question is one of broad interest, and (2) a lot of people still don’t know the difference between “reply” and “reply to all.”

Since we’ve got to feed the blog, and there are quite a few overseas drug and device companies doing business in the United States, we thought we’d give this question a look.

So, can a plaintiff (in addition to every other outrageously expensive discovery demand) require an overseas defendant to translate into English documents that it kept in its home language in the ordinary course of business?

In a word – no. Overwhelming precedent, just shy of unanimous, holds that translation costs are one expense of litigation that a plaintiff cannot shift to the defendant.

Each side must bear its own translation costs. The reason? That would be the good old-fashioned American Rule that each side, generally, pays its own litigation costs. The leading case is In re Puerto Rico Electric Power Authority, 687 F.2d 501 (1st Cir. 1982), in which the court granted mandamus and reversed an order compelling two parties that did business in foreign languages (Japanese and Spanish) to translate their documents into English for the benefit of opposing counsel (who apparently spoke only English). The court held:

[T]he Japanese and the Spanish translation orders share an even more fundamental defect. In our opinion, the Federal Rules do not confer upon the district court the power to have issued either. . . . Rule 34 contains no basis for orders such as have been issued here, and that, moreover, such orders violate the well-accepted principle that each party bear the ordinary burden of financing his own suit.

Id. at 506. The court refused to allow one party to impose “hundreds of thousands of dollars in prelitigation expenses” upon the other, as that would “upset the balance of prelitigation burdens.” Id. There was no basis for such an extraordinary shifting of litigation expense:

There is virtually no authority on the question of a district court’s power to order a party producing documents in discovery to pay – at the pretrial stage – the costs of translating the documents from one language to another for the benefit of the requesting party.

Id.

Puerto Rico Electric considered and rejected the only contrary authority cited to it, Stapleton v. Kawasaki Industries, Ltd., 69 F.R.D. 489 (N.D. Ga. 1975). Stapleton had held that “[i]n return for the privilege” of being allowed to sell products in the United States, foreign corporations should be required to bear “the cost of translating the[ir] documents as a reasonable cost of transacting business in this country.” 69 F.R.D. at 490. The First Circuit observed that Stapleton was both unreasoned and unprecedented. Such costs were recoverable, if at all, only by a prevailing party at the end of litigation:

It is generally assumed. . .that each party is to bear the “ordinary burden of financing his own suit.” While the prevailing party is permitted in the court’s discretion to recover certain enumerated costs necessary to preparation and presentation of his case, this allocation only occurs after the suit is over.

687 F.2d at 597 (quoting Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 179 (1974)). Nothing in the Rules changed this result with respect to translation costs. They aren’t the same as electronic discovery, which concerns, “‘data compilations’ translated through ‘detection devices.’” Id. “There is no hint of a more general principle requiring respondents to translate documents not written in the discovering party’s native tongue – nor, indeed, would there be any need to so extend the rule given the general availability of translators.” Id. See also 2006 Committee Note to Amendments to Fed. R. Civ. P. 34 (specifying the electronic discovery rules “do[] not address the issue of translating from one human language to another”).

Puerto Rico Electric left only the smallest amount of wiggle room – there could be situations where it would be “just” to order a party to translate, but even then the party should be reimbursed any costs that it incurred:

We are not prepared to say. . .that a court would never be justified in making an order to translate. Where one party has no resources by which to translate a key document, for example, and the producing party possesses easy access to such resources, a district court’s inherent authority to regulate the “terms and conditions of discovery” and to make “just” orders requiring a party to “provide or permit discovery” may conceivably support a translation order. Even in such circumstances. . .the producing party should probably be entitled to reimbursement for its reasonable expenses incurred in producing the translation.

687 F.2d at 509 n.2.

The result and rationale in Puerto Rico Electric has proven persuasive. In mass tort litigation, In re Korean Air Lines Disaster of Sept. 1, 1983, 103 F.R.D. 357 (D.D.C. 1984), rejected a demand that documents be translated from Korean to English:

The usual rule is that each party must finance his own suit. In keeping with this rule, each party pays its own pretrial discovery costs. Upon the conclusion of the litigation the Court may award these costs to the prevailing party. . . . The PSC argues that the cost of translation should be considered reasonable cost of doing business in the United States. The Court is not persuaded by this argument and neither the case authority nor the equities weigh on Plaintiffs’ side . . . . [A]t this pretrial stage, the Court finds no reason to require [defendants] to contribute to the financing of litigation against it. . . . [N]either will . . .defendants be required to bear what is rightly Plaintiffs’ burden.

Id. at 358. See also Anazonwu v. Nissan North America, Inc., 2006 WL 6035749, at *1 (N.D. Fla. June 26, 2006) (following Puerto Rico Electric Power); Extra Equipamentos E. Exportacao Ltda v. Case Corp., 2005 WL 1651738, at *3 (N.D. Ill. July 1, 2005) (“this Court does not have the authority under the federal rules to even enter such an order”); Contretas v. Isuzu Motors, Ltd., 1999 WL 33290667, at *1 (W.D. Tex. April 2, 1999) (“there is no authority for compelling the defendants to translate discovery documents”); Soto v. McLean, 1998 WL 1110688, at *2 (E.D.N.C. Jan. 30, 1998) (same rule as to translations of deposition transcripts); East Boston Ecumenical Community Council, Inc. v. Mastrorillo, 124 F.R.D. 14, 15 (D. Mass. 1989) (same rule as to foreign language interpreters at depositions); Howes v. Medical Components, Inc., 698 F. Supp. 574, 580 (E.D. Pa. 1988) (parties “cannot be compelled to translate foreign language documents for the benefit of their adversary”); Cook v. Volkswagen of America, Inc., 101 F.R.D. 92 (S.D.W. Va. 1984) (“better-reasoned view. . .is that the Plaintiffs must bear this expense [of translation] at this stage of the litigation”); 7 Moore’s Federal Practice §34.14[5] (3d ed. 2007) (“If a document that is required to be produced is in a foreign language and no English version exists, the producing party should not be required to translate the document into English at its own expense.”); American Law of Product Liability §53:102 (3d ed. 2008) (“a court is without authority to compel a party to provide translated documents in the first instance”).

There aren’t many state court decisions on translation costs, but what there is follows the majority federal rationale. See Ex parte Maple Chase Co., 840 So.2d 147, 150 (Ala. 2002) (“the federal courts are correct in holding that a party cannot impose on the producing party the cost of translating documents from a foreign language”); Lear v. New York Helicopter Corp., 597 N.Y.S.2d 411, 413-14 (N.Y.A.D. 1993)(“a party may not be compelled to procure a translation of a foreign-language document”); Rosado v. Mercedes-Benz of North America, Inc., 480 N.Y.S.2d 124, 126 (N.Y.A.D. 1984) (“it is the party seeking discovery of documents who should pay the cost of their translation”); Krygier v. Airweld, Inc., 520 N.Y.S.2d 475, 477 (N.Y. Sup. 1987); Conemaugh Coal v. Pittsburgh Contractors, 22 Pa. D. & C.3d 720, 723 (Pa. C.P. Allegheny Co. 1982) (“the Rule does not empower a court to compel the translation into English of documents prepared in another language”) .

The rule applies, however, only to discovery demands for translation. Discovery of foreign-language documents has been allowed even though the producing side’s attorneys would need to translate them to identify privileged documents. In re Fialuridine (FIAU) Products Liability Litigation, 163 F.R.D. 386, 387-88 (D.D.C. 1995) (plaintiffs entitled to untranslated documents).

One can only wish that the rules for electronic discovery had developed in such a sensible and traditional fashion.