NY MACHINERY INC. et al v. THE KOREAN CLEANERS MONTHLY et al

Filing 83

OPINION & ORDER denying 79 Plaintiffs' application seeking to compel Defendants to translate documents served as part of Defendants' document production. Signed by Magistrate Judge Edward S. Kiel on 1/6/20. (jc, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

NY MACHINERY INC., et al.,
Plaintiffs,
Civil Action No.: 2:17-12269-SDW-ESK
v.
OPINION & ORDER
THE KOREAN CLEANERS
MONTHLY, et al.,
Defendants.

This matter comes before the Court on the parties’ joint-letter regarding a
discovery disputes. (ECF Nos. 79.) The dispute concerns the obligation to translate
documents into English. The documents were produced by defendants, The Korean
Cleaners Monthly and John Chung (together, “Defendants”), in response to the request by
plaintiffs, NY Machinery Inc. and Kleaners LLC (together, “Plaintiffs”), for production
of documents. For the reasons that follow, Defendants are neither obligated to translate
the documents nor responsible for bearing the translation costs.
I.

BACKGROUND

Plaintiffs filed their complaint on November 30, 2017. (ECF No. 1.) They allege
unfair competition, false advertising, defamation, false light, trade libel, and tortious
interference with prospective economic relations as a result of Defendants’ publication
and dissemination of allegedly false and defamatory statements regarding Plaintiffs and
their products. (Id.) Defendants moved to dismiss the complaint on January 24, 2018.
(ECF No. 10.) District Judge Susan D. Wigenton granted the motion in part and denied

the motion in part. (ECF Nos. 15 & 16.) Plaintiffs thereafter filed an amended complaint
on June 29, 2018. (ECF No. 17.)
Fact discovery is ongoing. The Court twice extended the fact discovery deadline,
originally scheduled for March 1, 2019. The fact discovery deadline is now February 28,
2020. (ECF Nos. 27, 71, 82.) The parties served and responded to interrogatories.
Those responses are not at issue. The matter before the Court concerns Defendants’
responses to Plaintiffs’ request for production.
On April 16, 2019, Plaintiffs wrote to Defendants asserting various deficiencies in
Defendants’ discovery responses. (ECF No. 81-1.) In the letter, Plaintiffs’ wrote:
Defendants’ document production contains numerous
documents, including emails, that appear to be written in
Korean or Japanese. Plaintiffs have incurred the expense of
obtaining certified English translations of documents
contained in their production. We expect Defendants to
promptly produce certified translations of these documents.
(Id.)
According to Plaintiffs, on July 9, 2019, Magistrate Judge Leda Wettre directed
Defendants’ counsel to respond to Plaintiffs’ August 16, 2019 deficiency letter and
produce outstanding responsive documents by early August 2019. (ECF No. 73.) On
September 4, 2019, Plaintiffs wrote again to Defendants regarding remaining discovery
deficiencies. (ECF No. 81-2.) Regarding translations of documents, Plaintiffs wrote:
Defendants’ first and supplemental document productions
contain numerous documents, including emails, that appear to
be written in Korean and Japanese. Defendants’ cover letter
dated August 6, 2019 states that certified translations would
be provided, but Defendants have yet to provide same. Please

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advise when Defendants will produce certified translations of
these documents.
(Id.)
The parties exchanged further correspondence relating to discovery disputes,
which included Plaintiffs’ demand that Defendants provide certified translations of
documents. Additionally, according to Plaintiffs, Judge Wettre, during a telephone-status
conference on September 6, 2019, ordered Defendants to provide certified translations of
Defendants’ document production by September 22, 2019. (ECF No. 81-3 at 3.)1 During
oral argument on the present application, Defendants disputed that Judge Wettre ordered
them to provide certified translations of documents.
The parties submitted a joint-letter regarding all pending discovery disputes on
November 22, 2019. (ECF No. 79.) The Court heard argument on December 6, 2019
(the “Hearing”). The Court permitted the parties to file supplemental submissions
regarding the issue. (ECF No. 82 ¶ 5.). Neither party filed further submissions.
II.

ANALYSIS

The question before the Court is: Who bears the cost of translating foreignlanguage documents produced in response to a request for production of documents?
There is no clear answer in the Third Circuit. The Court, however, finds the analysis and
decision in Nature’s Plus Nordic A/S v. Natural Organics, Inc. 274 F.R.D. 437, 439
(E.D.N.Y. 2011) to be persuasive and adopts it herein.

Judge Wettre’s Order of September 6, 2019 does not reference a ruling regarding the
translation of documents. (ECF No. 71.)
1

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Rule 34 governs requests for production of documents. Rule 34(a)(1)(A) requires
that:
any designated documents or electronically stored
information--including writings, drawings, graphs, charts,
photographs, sound recordings, images, and other data or data
compilations--stored in any medium from which information
can be obtained either directly or, if necessary, after
translation by the responding party into a reasonably usable
form.
Rule 34 does not address which party has the obligation to translate documents into
English. In re P.R. Elec. Power Auth., 687 F.2d 501, 504–10 (1st Cir. 1982); see also
Fed.R.Civ.P. 34. In enacting Rule 34, Congress “had in mind computerized data or the
like which could be presented only by use of a machine … which [the responding party]
alone controlled. In such situations, the data would be valueless unless respondent
cooperated in rendering it intelligible. Nothing in the Advisory Committee’s comments
suggests that the amended Rule 34 was intended to apply outside the specialized situation
described, nor do they suggest that cost shifting—rather than simply making the data
available—was a purpose of the Rule.” In re P.R. Elec. Power Auth., 687 F.2d at 508.
Instead, a request for production of documents should ordinarily require producing only
the original documents, in whatever form or language they may have been kept. Albert
Rolland, S.A. v. Smithkline Beckman Corp., No. 85-3217, 1988 WL 34196, at *1 (E.D.
Pa. Apr. 8, 1988).
In Nature’s Plus Nordic A/S, one of the defendants moved by letter-motion for an
order seeking, inter alia, to compel the plaintiffs to obtain translations for all documents
not in English that were produced as part of the plaintiffs’ document production. The

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defendants argued that the plaintiffs’ failure to produce documents in English violated
Rule 34, and thus, the plaintiffs should have been required to translate all documents in
their production at their own cost. The plaintiffs, on the other hand, argued that the
production of non-English documents did not violate the Rules because the Rules “do not
require Plaintiffs to translate or otherwise identify, describe, or explain non-English
documents when such documents are produced as kept in the ordinary course of
business.” Nature’s Plus Nordic A/S, 274 F.R.D. at 439.
The Nature’s Plus Nordic A/S Court, citing the holding in In re Puerto Rico
Electric Power Authority, held that Rule 34 “d[oes] not provide the district court with any
authority to direct the party producing documents to translate them and that such orders
violate the well-accepted principle that each party bear the ordinary burden of financing
his own suit… and that each party … is expected to bear any special attendant costs.” Id.
at 442 (internal quotation marks and citation omitted); see also In re P.R. Elec. Power
Auth., 687 F.2d at 506–07. Thus, absent a showing of “prejudice to [the requesting party
for] undue delay,” the party responding to document demands has no obligation to
provide translations to foreign-language documents. Nature’s Plus Nordic A/S, 274
F.R.D. at 442.
A responding party may have an obligation to pay for the translation of foreignlanguage documents when the requesting party has made a reasonable request for
relevant documents and the responding party serves the requesting party with irrelevant
foreign-language documents, which are not responsive to the document request. Under

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these circumstances, the Court should reevaluate, and perhaps reallocate, the costs of the
translation to the responding party.
Here, Plaintiffs do not claim that the documents produced by Defendants in
response to Plaintiffs’ discovery demands are irrelevant. To the contrary, at the Hearing,
Plaintiffs argued that the documents are indeed responsive to Plaintiffs’ document
demands, and therefore, must be produced with a translation. Defendants argued that
Plaintiffs’ document demands are overbroad and call for irrelevant documents.
Nevertheless, to satisfy their obligation under Rule 34, Defendants produced all
documents responsive to Plaintiffs’ request, including the foreign-language documents at
issue. While Defendants may have been less than timely with their response to Plaintiffs’
deficiency-letters, it cannot be said that Defendants have engaged in undue delay. It
appears the issue of whether Defendants were obligated to translate documents has been
pending for a significant time, with no apparent resolution after good faith discussions
between the parties and no written directive from the Court.2 In addition, discovery is
ongoing in this matter.

Pursuant to the Court’s directive, the parties were required to have a “meet-and-confer”
to attempt to resolve all pending discovery disputes. (ECF No. 75.) There were, in fact,
discussions between the parties regarding the potential sharing of costs relating to the
translations of documents produced by both sides. (ECF No. 79.) The discussions, however, did
not result in a resolution of this dispute.
2

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For these reasons, the Court finds that Defendants are not obligated to provide
certified translations of documents that they produced in response to Plaintiffs’ request
for production of documents.3
III.

CONCLUSION
Here, as in Nature’s Plus Nordic A/S, where the discovery deadline has not

expired and Defendants have not unduly delayed the discovery process, the Court finds
no basis to shift the obligation from Plaintiffs to Defendants to translate foreign-language
documents served in response to Plaintiffs’ document demands.

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Documents served in response to interrogatories, however, require a different analysis.
Id. at 440. This is because document demands seek documents in response. Interrogatories seek
answers to specific questions. The Court has not been asked to determine whether foreignlanguage documents produced in response to Plaintiffs’ interrogatories violate Rule 33(d).
Pursuant to Rule 33(d), a responding party may serve documents in responses to
interrogatories when an interrogatory response can “be determined by examining, auditing,
compiling, abstracting, or summarizing a party’s business records (including electronically
stored information), and if the burden of deriving or ascertaining the answer will be substantially
the same for either party.” Fed.R.Civ.P. 33(d). “[W]hen a party responds to an interrogatory by
producing documents written in a foreign language, Rule 33(d) requires the responding party to
provide a translation of those documents[,]” and the parties should share in the cost. Nature’s
Plus Nordic A/S, 274 F.R.D. at 441; see also Invensas Corp. v. Renesas Elecs. Corp., No. 11448, 2013 WL 12146531, at *6 (D. Del. May 8, 2013) (holding that Rule 33(d) requires a
responding party to provide translations to foreign-language documents served in response to
interrogatory demands.)

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IT IS THEREFORE ORDERED, on this 6th day of January 2020, that
Plaintiffs’ application seeking to compel Defendants to translate documents served as
part of Defendants’ document production in this instance (ECF No. 79) is DENIED.

/s/ Edward S. Kiel
Edward S. Kiel
United States Magistrate Judge

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