We’ve blogged about legal translation services, legal translators and foreign language disclosures. In the case Seger v. Ernest–Spencer, 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.