Earlier we blogged about the role of foreign language translation in transnational litigation. When a foreign company is involved in U.S. litigation, regardless of whether it is against a U.S. company or not, there are several important factors to keep in mind. As an attorney representing the foreign company, of particular interest is the extent of attorney-client privilege. As both the U.S. and foreign country's Code of Civil Procedure may apply – knowing when communications are privileged and to whom this privilege extends to is essential.
According to U.S. case law, at times a court will simply opt not to apply U.S. law to attorney-client privilege. However, the majority of courts will take a comity approach to the issue, which holds that if the communication touches base with the U.S., U.S. laws will be applied. On the other hand, if the communications relates to matters only involving the foreign country, that foreign country's laws will be applied. Aktiebolag v. Andrx Pharmaceuticals, Inc., 208 F.R.D. 92, 97-98 (S.D.N.Y. 2002); Golden Trade, S.r.L. v. Lee Apparel Co., 143 F.R.D. 514, 520 (S.D.N.Y. 1992).
This determination, of course, depends on the communication being understood. For this reason, having a foreign language translation of the communication in question is essential to determining as to which country it touches upon. Furthermore, as many foreign countries are involved in highly technical litigation, all foreign language translations should be done by translators familiar with both the language and the industry.
To read our legal translation blog post "Foreign Language Document Translation, and Using Foreign Law as Evidence", click here.