Antitrust, Vol. 29, No. 2, Spring 2015. © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

LITIGATION PRACTICE Notes from the Field

stand that inaccuracies in and interpretation are fair- Translation Protocols: ly common, but judges underappreciate this risk. Translation and interpretation are also both very expensive, The Time Has Come and they will affect the time it takes to complete discovery and trial. Courts and clients will, of course, want to control cost and BY LISA C. WOOD promote efficiency, but these objectives must be balanced against those other factors to make sure that translation quali- ty is not sacrificed on the altar of efficiency. A translation proto- col (which typically addresses the related issue of interpretation) RANSLATION IS BOTH A FITTING AND TIMELY TOPIC. is one way to strike this balance. The number of U.S. litigants who are not English profi- To explore these interesting and competing issues, I inter- cient increases every year, with the most recent sta- viewed several experienced with translation and inter- tistics estimating that at least 20 percent of litigants pretation, as well as several translators. These interviews were T 1 in U.S. courts are limited English proficient (LEP). Courts and invaluable, and I want to acknowledge the assistance of John H. litigators thus now routinely confront the challenges posed by Chung, White & Case LLP; Kevin B. Goldstein, Weil, Gotshal & the need for extensive translation of exhibits and interpretation Manges LLP; Ian Simmons, O’Melveny & Myers LLP; Mark L. of testimony. Given our global economy, there has also been an Krotoski and Hill B. Wellford, Morgan, Lewis & Bockius LLP; Layne extraordinary increase in cases pursued in U.S. courts that E. Kruse, Fulbright & Jaworski LLP; Wheatleigh Dunham, Attorney involve foreign parties who are often LEP. Translation Services, LLC; and my Foley Hoag colleagues Thomas In particular, translation and interpretation issues are rou- Ayres, Claire Laporte, and Jeremy Younkin. I also reviewed trans- tinely faced by antitrust lawyers defending companies in cartel lation protocols we have developed at Foley Hoag, as well as sev- matters involving foreign parties. Court rules and case law have eral protocols used in recent cartel cases, and quote liberally not caught up to this development, however. While existing law from them later in this column. Intrigued by what I heard in these deals well with a case involving an occasional translated docu- interviews, I dusted off my college textbooks on the philosophy of ment or perhaps one witness testifying with interpreters, the language, and actually reread several essays on translation to rules and related case law do not address adequately those remind myself of the academic community’s views on translation cases in which most of the documents and testimony needs to outside the legal context.3 Lastly, I reviewed the ABA’s own be translated and interpreted.2 This absence of established law Standards for Language Access in Courts, adopted in February is both a subject for concern and an opportunity for advocacy. 2012.4 I served on the project advisory group that developed In any case involving a substantial number of documents that these standards, and as the chair of the ABA’s Standing will need to be translated and witnesses who will testify at dep- Committee on Legal Aid and Indigent Defendants, I have had the osition and at trial in a language other than English, it is imper- privilege of speaking to judges around the regarding ative that counsel develop a court-endorsed protocol to handle implementation of these standards. translation a