Language Translation, Assertion of Privilege and Foreign Language Speakers

We’ve blogged about legal translation services, legal translators and foreign language disclosures. In the case Seger v. ErnestSpencer, Inc., 2010 WL 378113 (D. Neb. Jan. 26, 2010), the court held that a non-party waived its claim of privilege to previously-produced email documents and thus granted the defendant’s motion to compel. The court based its decision on its finding that the disclosure was knowing and intentional – as the non-party failed to establish reasonable precautions to prevent disclosure and their lack of a timely claim to privilege.

In determining whether a party waives its assertion of privilege, the court applied a five-step analysis to the “knowing and intentional” requirement:

  • The reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of document production,
  • The number of inadvertent disclosures,
  • The extent of the disclosures,
  • The promptness of measures taken to rectify the disclosure, and
  • Whether the overriding interest of justice would be served by relieving the party of its error.

However, if the party asserting privilege is a non-English speaker, there may be a question as to knowing and intentional. In such a case, the requesting party would be wise to have a foreign language translation for all document requests – thus limiting the likelihood that an assertion of privilege can later be raised.

Up Next: Legal Translation Service for e-Discovery

All Language Alliance

by Legal Translator & Court Interpreter

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