Are Translations Prepared For Litigation Covered By Privilege -- Surprising No

The surprising decision in Arie v. Schreiber, 2008 CanLII 26677 (ON S.C.)
holds that translations of producible foreign language documents prepared by counsel for the litigation are not covered by litigation privilege.

The decision might seem contrary to the principle that work product is not producible. The unspoken underlying thesis for the decision seems to be that the untranslated documents are producible and so the translations are also producible.

Some might suggest such thesis misunderstands the concept of translation -- that said, the case is relevant for counsel working with foreign language materials.

The case provides:

Are the translations protected by privilege?

[6] Rule 30.02 states: Every document relating to any matter is issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed as provided in rules 30.03 to 30.10, whether or not privilege is claimed in respect of the document. Schedule A of the plaintiffs' Affidavit of Documents included many Hebrew documents. Clearly, the plaintiffs realized the relevance of the documents in their Hebrew form, realized their duty to produce all information within their knowledge and belief, and produced it. The plaintiffs are, however, now in breach of the Rules for their failure to enumerate the Hebrew translations into Schedule B of their Affidavit of Documents. Does the fact that a student translated a relevant document turn that document into a document that is privileged?

[7] Rule 1.04 states that These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. The circumstances before me are indicative of a situation that requires the invocation of Rule 1.04. Clearly, it makes no sense that a solicitor can simply arrange for someone in their own office to translate a document so that that document can take on the status of a privileged document. Imagine what would happen in an international commercial transaction case where thousands of documents are generated from countries all over the world in different languages and each party then claimed privilege over the translation. It would cause a complete breakdown in the proceeding.

[8] Once the plaintiffs have already arranged for the translation and the document has already been produced in its original form (Hebrew) and the document has not been edited by the solicitor, then the translated document shall be produced in order to secure the just and most expeditious and least expensive determination of this proceeding.

[9] Further I find that the only evidence before the court regarding the translated documents being privileged is the general statement by counsel at the examination for discovery to the effect that the documents were translated for the purpose of providing legal advice. The documents have already been produced in Hebrew. Simply because the have been translated, does not , in my view, alter the nature or status of the documents. It appears that the plaintiffs want the defendants to incur the costs of their own translation and this is definitely contrary to Rule 1.04.