Filing Privileged Foreign Language Documents in Litigation
Sometimes during multilingual discovery an attorney will inadvertently file a privileged document. This can happen with foreign language documents, especially when the English translation is not available. When this occurs, the receiving attorney has various ethical obligations as to how to handle the filing. However, every state has very different approaches to what these ethical obligations are.
For example, some states hold an attorney can retain and actually use inadvertently produced documents reviewed and received in good faith. Other states require the attorney seek the guidance of the court. Yet other states require the attorney to return the document.
Of course, when the inadvertently filed document is in a foreign language, the receiving party often will not know of its privileged status unless a foreign language translation is done. Because the courts have ruled no ethical obligation arises until one becomes aware of the privileged nature of the foreign language document, an attorney should have a foreign language translation of the document and then, based on the translation, follow that particular jurisdiction’s ethical requirements.
See D.C. LEO 256 (1995); Maryland LEO 2000-04 (1999); In re Meador, 968 S.W.2d 346, 352 (Tex. 1998); Kondakjian v. Port Authority of New York and New Jersey, 1996 WL 139782 (S.D.N.Y. 1996); Brandt v. FDIC, 212 B.R. 386, 296 (Bankr. S.D. Fla. 1996).