Issues in Legal Translation – Practical and Procedural Considerations

In the burgeoning language services industry, the legal translations market has been a sector of unparalleled growth in the past decade. While the development of technology such as machine translation and advanced e-discovery platforms has made complex international legal matters more manageable, the issues surrounding legal translations continue to be addressed by both practitioners and courts. The current discourse incorporates both procedural and practical considerations when foreign language documents arise in litigation and spans diverse practice areas in today’s increasing globalized legal industry.

In US jurisprudence, several recent cases have addressed the practical, common-sense considerations highlighted the importance of partnering with a trusted language services partner when foreign documents arise in the course of practice. A recent federal case in California in 2014 (In re: Toyota Motor Corp. Unintended Acceleration Marketing, Sales Practices, and Products Liability Litigation) illustrated the importance of discretion and confidentiality when translating foreign documents. In this multi-district litigation, a legal translator working as a freelancer for an agency retained by the law firm representing the defendant Toyota Motor Corp. and uploaded hundreds of confidential and privileged documents for public access on the internet. U.S. District Court Judge James V. Selna issued a tentative ruling finding the translator in civil contempt for uploading 88 confidential documents she received after signing a protective order protecting the documents in the course of the MDL. Although the case was ultimately settled, the Court’s action highlights the importance of working with an established language services provider with strict confidentiality protocols to safeguard the sensitive documents implicated in the course of discovery.

Furthermore, the budgetary considerations involved with translating a large volume of foreign documents produced in the course of discovery has also been addressed by the U.S. Supreme Court in the 2012 case Taninguchi v. Kan Pacific Saipan. Ltd (132 S.Ct. 1997). In the majority opinion, Justice Alito examined whether 28 U.S.C. § 1920(6), the Court Interpreters Act, which allows courts to award a prevailing party the costs of oral interpreters, also permits a court to award for the cost of document translation. In this case, a Japanese professional baseball player suffered injuries on defendant’s property and sued, and sought to recover the costs for translating documents and medical records from Japanese into English. While noting the substantial expenditures incurred while translating the files, the Court concluded that fee stipulation in the statute only applied to oral interpreters and not document translation, ultimately rejecting a more expansive view of costs. This decision by the nation’s highest court animates the necessity of establishing the most cost-effective workflow when partnering with a provider on translation projects and ensuring budgetary considerations are taken into account from the outset of litigation.

Finally, a the Florida Supreme Court has recently addressed an issue in which non-English speakers who purchased a vehicle with an arbitration clause in the sales contract attempted to return the vehicle to the dealership. All of the agreements were in English, and the plaintiffs filed suit claiming fraud in the inducement and violation of the Florida Deceptive and Unfair Trade Practices Act, and the dealership attempted to enforce the arbitration clause. Ultimately, the Florida Supreme Court remanded the case on procedural grounds, but commentators have stated that the lessons learned from the case include providing that party with copies of the agreements that are translated in their native language would provide a defense to any claims that the agreements are unenforceable due to a language barrier. This intersection of law, public policy, and translation services is a unique combination of substantive and practical considerations, ultimately representing the importance of clarity and transparency in today’s diverse marketplace.

These limited examples highlight the major considerations when partnering with a language services provider – confidentiality, cost, and practicality –they by no means represent the full discourse in today’s legal translation market. The proliferation of global disputes and international business transactions in the increasingly complex business environment means that foreign documents will continue to be implicated in litigation at an increasing rate.

Both lawyers and corporations should have a trusted partner to facilitate these translation projects and become a snap-on solution for the management of foreign documents. With LingPerfect’s consultative approach, we are glad to become part of your litigation team and ensure all legal language support services are provided as discreet and cost-effective as possible.