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The first foreign language lawsuit I worked on as an attorney was an international price fixing case with defendants in Japan and Germany. Boxes of printed discovery were produced in Japanese. This raised serious issues of how to find documents that supported our causes of action and prepare for depositions. Fast forward to present day: Parties might not be producing boxes of paper—in lawsuits with products made in the United States but with overseas parent companies—and instead hard drives of data in multiple languages.
International business raises a complex question for litigators: how do you review discovery in a different language? From cases with deposition notices, to third-party requests for production, to products liability cases for cars, parties can easily find themselves in discovery with documents in both English and a different language.
Discovery productions can run the gamut from a deponent producing over 2,100 records mostly in Japanese before a deposition; to a Plaintiff in an auto-recall case producing 1.79 million pages of discovery, with 84,000 documents in Japanese. In re Lithium Ion Batteries Antitrust Litig. Case No. 13-md-02420-YGR (DMR) (N.D. Cal., 2015); Nissan N. Am. v. Johnson Elec. N. Am., 2011 U.S. Dist. LEXIS 16022 (E.D. Mich. Feb. 17, 2011).
Case law has held that translations of foreign languages by a party during document review are ordinary work product, because bilingual reviewing attorneys would determine whether a document was “hot,” and second tier attorneys would decide whether to translate the document. As such, any documents translated to English under the direction of an attorney would show what documents the producing party thought were “important” to the case. Shionogi & Co. v. Intermune Inc. No. C -12-03495 EDL (N.D. Cal., Dec. 5 2012).
For more on foreign language review, plus best practices, please read my guest post for Everlaw on review electronically store information in multiple languages.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.