Back in 2008, we wrote a post, No, Bu shi, Non, Iie, Nada, Nyet…., collecting a significant body of law holding that overseas defendants are not required to translate, at their expense, documents prepared in their non-English home languages. The other day we came across Sessoms v. Toyota Motor Sales, U.S.A., Inc., ___ S.E.2d ___, 2024 WL 5249823 (N.C. App. Dec. 31, 2024), reversing yet another order that a foreign defendant pay for translating its own documents:
[W]e conclude the trial court erred by requiring the . . . Defendants to create new documents in English of documents already provided that are in the Japanese language. Rule 26 of our Rules of Civil Procedure allows a party to seek documents in the possession of the adverse party; it does not generally require the adverse party to pay for any said documents to be translated into the English language. In other words, there is no duty to produce documents that do not exist.
Id. at *2 (citation omitted). Sessoms was “persuaded by what we perceive to be the greater weight of authority in the United States that a party producing documents is not required to create new documents consisting of English translations of documents already provided.” Id. at *3. Sessoms cited eight cases exemplifying that “authority” – three of which were decided after our 2008 post. That suggests that the post could use an update.
So here’s that update.
The three newer decisions Sessoms cited are: Fujitsu, Ltd. v. Tellabs, Inc., 2009 WL 10628293, at *3-4 (N.D. Ill. Sept. 10, 2009); Toyo Tire & Rubber Co. v. CIA Wheel Group, 2016 WL 6246383, at *2 (C.D. Cal. Jan. 14, 2016); and Mills v. Kia Motors America, Inc., 2010 WL 11507257, at *1-2 (M.D. Ga. Sept. 7, 2010).
The Fujitsu case was a bit unusual, and the dispute was not about translating a discovery production, per se, but rather about whether a privilege log prepared by an overseas defendant in its own language had to be in English. The answer was “no.”
[Defendant’s] claim is not that [plaintiff’s] log fails to comply with Rule 26, but rather that [the] log does not permit an assessment of whether it complies with Rule 26. That claim is simply unconvincing. . . . Simply put, nothing in the rule’s plain language suggests, and no court has ever intimated, that Rule 26(b)(5) requires a party producing a privilege log to translate entries written in a foreign language. Consequently, [defendant’s] motion must be denied.
2009 WL 10628293, at *3. The decision looked to some of the precedent addressing the “closely allied” question discussed in our prior post, and held that the plaintiff “has no obligation to furnish . . . a privilege log written entirely in English.” Id. at *4.
In Toyo Tire, the defendant claimed it could not afford to translate the documents that the plaintiff produced in discovery. 2016 WL 6246383, at *1. The decision instead followed “the majority of courts that have refused to compel translation.” Id. at *2. “[T]he Court rejects [the argument] that foreign companies who do business in the United States should see translation of document productions as part of the cost of doing business.” Id. Mills compared two of the decisions discussed in our earlier blogpost and agreed that Fed. R. Civ. P. 34 “generally provides no basis to require pretrial payment of translation expenses” and further “that requesting parties should bear the costs of sifting through responsive documents.” Id. at *1 (following Puerto Rico Electric Power Authority v. Petitioner, 687 F.2d 501 (1st Cir. 1982)).
Conducting our own follow-up research, we have found additional decisions since 2008 that follow the majority rule rejecting imposition of document translation costs on producing parties. Perhaps the most significant treatment of the issue occurred in NY Machinery, Inc. v. Korean Cleaners Monthly, 2020 WL 64542 (Mag. D.N.J. Jan. 6, 2020). After addressing several relevant cases, the decision concluded:
A responding party may have an obligation to pay for the translation of foreign-language documents when the requesting party has made a reasonable request for relevant documents and the responding party serves the requesting party with irrelevant foreign-language documents, which are not responsive to the document request. Under these circumstances, the Court should reevaluate, and perhaps reallocate, the costs of the translation to the responding party.
Here, Plaintiffs do not claim that the documents produced by Defendants in response to Plaintiffs’ discovery demands are irrelevant. To the contrary, . . . Plaintiffs argued that the documents are indeed responsive to Plaintiffs’ document demands, and therefore, must be produced with a translation. Defendants argued that Plaintiffs’ document demands are overbroad and call for irrelevant documents. Nevertheless, to satisfy their obligation under Rule 34, Defendants produced all documents responsive to Plaintiffs’ request, including the foreign-language documents at issue. . . . For these reasons, the Court finds that Defendants are not obligated to provide certified translations of documents that they produced in response to Plaintiffs’ request for production of documents.
Id. at *3 (footnote omitted). Additional cases refusing to require translation of corporate documents produced in their original, native tongue include: Cynosure, LLC v. Reveal Lasers LLC, 2024 WL 1620951, at *2 (Mag. D. Mass. April 15, 2024) (“the Federal Rules of Civil Procedure do not give the district court any authority to order a party that produces foreign-language documents in discovery to translate those documents into English at its own expense”) (bound court following Puerto Rico Electric Power); Luxottica Group. S.p.A. v. Yiwu Cujia Trade Co., 2023 WL 6520213, at *4 n.3 (Mag. N.D. Ill. Oct. 5, 2023) (“Courts have routinely held that a party does not bear the burden of providing English translations of foreign documents produced under Rule 34.”); J.T.F. v. District of Columbia, 2023 WL 5528037, at *3 (D.D.C. Aug. 28, 2023) (“Plaintiffs’ translation objection fails and is over-ruled”; “the party attempting to translate the documents bears the cost of translating them”); Smith v. China Manufacturers Alliance LLC, 2023 WL 4922941, at *6 (Mag. W.D. La. Aug. 1, 2023) (“acknowledg[ing] the general rule that the Federal Rules of Civil Procedure do not confer the power to order a party responding to discovery to translate those documents at the pretrial stage”); Lomanto v. Agbelusi, 2023 WL 4118124, at *18 (S.D.N.Y. June 22, 2023) (“Courts have repeatedly held . . . that there is no obligation for a producing party to translate documents provided to the other party, and indeed, some courts have held that court orders mandating translation exceed the authority of the district court.”) (footnote omitted), aff’d, 2024 WL 3342415 (2d Cir. July 9, 2024); Luc v. Korean Air Lines Co., 2019 WL 7824597, at *2 (N.D. Ga. July 9, 2019) (“the requesting party bears the burden of the cost of translating documents produced pursuant to Rule 34”); Export-Import Bank of Korea v. ASI Corp., 2017 WL 11509453, at *2 (C.D. Cal. June 26, 2017) (reversing order requiring a party “to translate into English all foreign-language documents that it produces in response to all . . . future requests for production”); Tech-Sonic, Inc. v. Sonics & Materials, Inc., 2015 WL 4715329, at *9 (D. Conn. Aug. 7, 2015), (“the party responding to document demands are under no obligation under the Federal Rules to translate documents produced”) (citation and quotation marks omitted); Icon-IP Pty Ltd. v. Specialized Bicycle Components, Inc., 2014 WL 6788182, at *3 (Mag. N.D. Cal. Dec. 2, 2014) (“[plaintiff] is not obligated to translate the . . . documents for [defendant]”); Wagner v. Apisson, 2014 WL 6694792, at *1 (Mag. D. Utah Nov. 26, 2014) (“the producing party has no obligation to provide translated documents during the discovery process”); Shinedling v. Sunbeam Products, Inc., 2013 WL 12171959, at *7 (Mag. C.D. Cal. Oct. 25, 2013) (“[defendant] is correct that Rule 34 does not require the producing party to do more than produce documents as they are kept in the ordinary course of business”); Nature’s Plus Nordic A/S v. Natural Organics, Inc., 274 F.R.D. 437, 442 (Mag. E.D.N.Y. 2011) (“the Court finds no basis to shift the obligation from Defendant to the Plaintiffs here to translate documents produced by the Plaintiffs”); Briese Lichttechnik Vertriebs v. Langton, 272 F.R.D. 369, 373 n.4 (Mag. S.D.N.Y. 2011) (“for discovery purposes, plaintiffs have no obligation to provide translations of the German language documents”); GenScript Corp. v. AA Peptides, LLC, 2011 WL 13209805, at *1 (W.D. Ky. July 1, 2011) (“A party may not impose the cost of translating foreign language documents on the party or parties that produce them”); Finmeccanica S.P.A. v. General Motors Corp., 2008 WL 11338889, at *3 (Mag. C.D. Cal. May 30, 2008) (“the general rule is that the party seeking discovery bears the burden of paying for production and that includes the cost of having the document translated into English”) (citation omitted).
We found one “but see” citation to all of this. In Delphi Automotive Systems LLC v. Shinwa International Holdings Ltd., 2009 WL 10687811 (Mag. S.D. Ind. April 28, 2009), the defendant was ordered to create “computer generated translations” of produced documents using “software [the party] already has.” Id. at *6. While Delphi is a relatively old case − by the standards of this post, anyway – we can’t help but wonder if the key factor in that decision, “computer generated translations,” points the way to the ultimate resolution of this issue. Computerized translation programs have improved by leaps and bounds over the years, so it could well be that document translation becomes so cheap and easy as to be no longer worth fighting about. We’re not there yet, as our five decisions, above, in the last two years demonstrates, but that would seem to be the direction things are headed.
A few other things caught our eye in researching this post.
First, some older cases, including Puerto Rico Electric Power, 687 F.2d at 510, suggested that translation costs might eventually be recoverable as costs. However, those suggestions are contrary to the Supreme Court’s decision in Taniguchi v. Kan Pacific Saipan, Ltd., 566 U.S. 560, 572 (2012), that “interpreter,” as used in the federal cost recovery statute, 28 U.S.C. §1920(6), “does not apply to translators of written materials.” Id. at 572 (footnote omitted).
Second, the courts do draw a distinction between documents produced in response to a document request and documents produced under Fed. R. Civ. P. 33(d) in lieu of answering an interrogatory. In the latter case, “a party responding to interrogatories by reference to foreign documents is obligated to translate the documents at its own expense.” Nature’s Plus, 274 F.R.D. at 440. Other cases requiring translation of documents used in Rule 33(d) interrogatory responses are: Shinedling, 2013 WL 12171959, at *7 (“If [defendant] is going to continue to point to documents produced to satisfy its response, it must produce English translations of those documents.”); Invensas Corp. v. Renesas Electronics Corp., 2013 WL 12146531, at *6 (Mag. D. Del. May 8, 2013) (“there is a clear difference between a party moving to compel translation of foreign-language documents simply produced in response to requests for those specific documents, and a party moving to compel translation of foreign-language documents produced in response to interrogatories”); Sungjin Fo-Ma, Inc. v. Chainworks, Inc., 2009 WL 2022308, at *4-5 (Mag. E.D. Mich. July 8, 2009) (“[t]he burden on Defendant would be great if Defendant has to translate each document,” therefore “Defendant has shown that the burden of deriving or ascertaining the answers is not substantially the same for both parties”); E. & J. Gallo Winery v. Cantine Rallo, S.p.A., 2006 WL 3251830, at *5 (Mag. E.D. Cal. Nov. 8, 2006) (where a party “has made the decision to produce the documents in lieu of responding to an interrogatory, . . . [r]eferencing documents written in a foreign language does not completely fulfill this duty”).
Third, we did find one other quasi-exception. Maxlite, Inc v. M&C Lighting Ltd., 2020 WL 5088419 (D.N.J. Aug. 28, 2020), ordered the translation of a document attached to a party’s expert report as reliance material, as opposed to something that was solely part of a general document production. In that instance, the party “put the content of those documents directly into issue by its own unilateral action.” Id. at *4. Therefore, Maxlite held that a party producing an expert report “must provide opposing counsel with the information its expert considered and relied upon, and it should be in a format which they can review.” Id.
Fourth, and finally, outside of the scope of our research is the privilege question of whether already translated documents need to be produced in English, where the only reason for their translation was at the request of corporate counsel in the litigation. While already-translated documents are ordinarily producible, documents translated solely at the request of counsel are often considered protected work product. Compare, e.g., Luc, 2019 WL 7824597, at *2, and Shionogi & Co. Ltd. v. Intermune Inc., 2012 WL 12925037, at *1-2 (Mag. N.D. Cal. Dec. 6, 2012) (both finding work product protection), with, Contretas v. Isuzu Motors, Ltd. of Japan, 1999 WL 33290667, at *2-3 (Mag. W.D. Tex. April 2, 1999), and In re Air Crash Disaster Near Warsaw, Poland on May 9, 1987, 1996 WL 684434, at *1-2 (E.D.N.Y. Nov. 19, 1996) (both rejecting the same work product argument). We simply note the issue here.
On the one hand, we’re pleased that our update found so much new law, but on the other hand it reminds us how long we’ve been blogging – which makes us feel old.