You finally receive a long-awaited document production and are eager to dive in and find out what your opponent, the manufacturer of a drug or medical device, has memorialized in its internal documents. Except there is one glaring problem: the documents are all in German! Despite all your accolades, you are far from fluent in German, rendering thousands of pages of discovery virtually useless to you. Now what? If you have never litigated a case with a foreign corporation as a named party, you may be surprised to learn that the Federal Rules of Civil Procedure do little to assuage the language barriers you are likely to encounter along the way. These language barriers can peak during discovery, persist through trial and burden both sides alike without regard to party lines. With increasing globalization and e-commerce placing more products from foreign corporations in the hands of U.S. customers, the lack of federal guidance on this issue may soon warrant the attention of the Judicial Conference, the U.S. Supreme Court and Congress. In the meantime, there are steps you can take to overcome the language barriers that can leave you and your opposition on different pages when it comes to more than just your legal positions.

Scarce Guidance from the Federal Rules. The Federal Rules of Civil Procedure are silent on and thus impose no requirement on foreign parties to produce English documents in response to discovery requests stemming from actions in U.S. federal courts. Fed. R. Civ. P. 34(b)(2)(E) expressly allows corporations to produce responsive documents as they are “kept in the usual course of business …” Practically speaking, the federal rules authorize a foreign party to produce thousands of documents in multiple languages so long as they are normally maintained that way. In the absence of a clear mandate to the contrary, district courts interpreting Fed. R. Civ. P. 34 have repeatedly held that absent extenuating circumstances a producing party is not required to translate every foreign language document they produce or otherwise bear the costs of translation, see e.g., Toyo Tire & Rubber v. CIA Wheel Group, 2016 WL 6246383 (C.D. Cal. 2016) (denying the plaintiff’s motion to compel translation citing “a long line of cases has rejected the argument that a producing party should be compelled to translate its foreign-language documents”); Nature’s Plus Nordic A/S v. National Organics, 274 F.R.D. 437 (E.D.N.Y. 2011) (finding “no basis to shift the obligation” of translation to the producing party); In re Fialuridine (FIAU) Products Liability Litigation, 163 F.R.D. 386 (D.D.C. 1995) (“party cannot impose the cost of translating documents that exist in a foreign language on the producing party.”) At most, district courts have held that the producing party must provide only the translations it has previously obtained and only if disclosure to opposing counsel would not otherwise violate work product or attorney-client privileges. Thus, while federal court proceedings must be conducted in English, it is squarely up to the parties, namely the requesting party, to develop the process by which foreign documents will be translated into English.