This post discusses authentication of foreign language documents for use as evidence with sworn translations pursuant to Texas Rule of Evidence 1009, and challenging the translation offered by the proponent of the foreign-language document as a trial exhibit or as summary judgment evidence.
SPANISH LANGUAGE VERSIONS OF CONTRACTS AND
ACCOUNT DOCUMENTATION IN LITIGATION
Some banks, such as Wells Fargo and Bank of America (FIA Card Services, N.A.), cater to ethnic submarkets by offering written materials, including cardmember agreements and monthly account statements, to customers belonging to various national or ethnic groups in their own language. Not surprisingly, the most common foreign language is Spanish.
Documents in Spanish thus occasionally also surface in debt litigation; be it in the course of discovery, as attachments to motions for summary judgments, as business records filed under a business records affidavit, or as trial exhibits.
Even if the client speaks the language, such documents should be objected to when offered without certified translation. The language of the courts is English, and even if a judge knows Spanish, counsel for the defense has no obligation to either know a foreign language or incur expense to have a foreign document translated. Without being able to comprehend the writing on the material, the defendant's attorney would be compromised in the rendition of the best possible advice to the client.
ADMISSION FOR FOREIGN-LANGUAGE DOCUMENTS UNDER TRE 1009
Texas adopted a new rule of evidence in 1998 that provides for a simplified method to make foreign language documents admissible, assuming they otherwise qualify for admission as business records or on some other basis. See Tex. R. Evid. 1009.
Rule 1009 permits the proponent to file an English translation of the foreign language document prepared by a qualified translator and attested to as such by affidavit (now presumably also by sworn declaration under penalty of perjury in lieu of a sworn affidavit).
The rule also permits the opposing party to object to the accuracy of the translation, but the opposing party is not required to have a certified translator do a competing translation. It can rely on other resources or means to evaluate the certified translation offered by the opposing counsel and decide whether to challenge any part thereof.
What the opponent must do, however, in order avail himself of the right to contest the translation, is to point out with specificity any error or inaccuracy in the translation, and offer an alternative translation of the relevant portions of the text. This must be done in a timely manner.
Otherwise, any objection to the faithfulness of the English-language translation filed by the proponent of admission of the foreign language documents will be waived, and the party will not be permitted to complain of translation error at trial.
TEXT OF TEXAS RULE OF EVIDENCE 1009 (image of TRE 1009) TITLED ‘TRANSLATION OF FOREIGN LANGUAGE DOCUMENTS’