A Blog About Intellectual Property Litigation and the District of Delaware


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Prego! Krista Stucchio, Unsplash

An interesting note on the importance of translation -- and accurate translation -- from Judge Connolly last week in Doda v. Waste Management, Inc., C.A. No. 17-604-CFC (D. Del. Jan 13, 2022).

The plaintiffs were an Italian engineer and his companies who were doing business with an American firm pursuant to an NDA. The NDA required the parties to mark any confidential information "'Confidential,' 'Proprietary,' or [with] some similar designation." Plaintiffs alleged that defendant breached the agreement by disclosing such confidential information to the patent office, which later published it.

The issue? The "designation" was only in Italian.

In their posttrial Proposed Findings of Fact, Plaintiffs state that this paragraph [below a signature block in an email] constitutes "a confidentiality notice in Italian." Plaintiffs cite in support of this assertion only JTX-14, which reads in relevant part: AVVISO: le informazioni contenute o allegate alla presente sono dirette unicamente al destinatario sopra . . . .

Id. at 30 (it goes on like that in Italian for quite a while).

Outside of the notice issue this might have presented between the parties, the plaintiff also failed to provide a certified translation of this language to the factfinder. Judge Connolly described the issue succinctly:

There is no English translation of this paragraph anywhere in [the exhibit]
. . .
I do not speak or read Italian.

Id. at 31.

The closest they came to providing a translation was this snippet of testimony from the email's sender, Ada Doda, who stated:

Q. Turning back to your e-mail on the first page of the exhibit, JTX-14, what information are you giving at the bottom of your e-mail, the signature block?
A. Please be advised that information and drawings attached are confidential, for the purpose of -- for the --for the --

That's literally where it ends.

Judge Connolly noted that the plaintiffs failed to cite this testimony in support of the assertion that the Italian passage constituted a confidentiality notice, and thus had waived the argument. Interestingly, however, he also took the time to check the passage on Google translate, arriving at the following rough translation:

NOTICE: The information contained or attached hereto is directed solely to the above recipient indicated. In case of receipt by a different person, any type of distribution or copying is prohibited. Anyone who receives this communication by mistake is required to inform us immediately by telephone and e-mail return to us what you have received, by post, to the above address. Although it is DODA company's concern to protect its electronic paste [sic] system from viruses or other harmful facts, the same does not guarantee that this message (including its possible attachments) is free from viruses and is not responsible for damages suffered by the recipient as a result of receipt, opening or use of this message.

Id. at 31 (citing Google translate).

To my eye this looks like the sort of copypasta (ha!) that you see on the bottom of a great number of corporate and law firm signatures, as opposed to a confidentiality designation that you might see pursuant to an NDA. Judge Connolly appeared to come to a similar conclusion, stating:

I find that Ada Doda's testimony about the content of the paragraph below her signature line is not credible and would not rely on it.

Id. at 32.

Oof (it's the same in Italian, I checked).

Unsurprisingly, the Court did not find that the Italian notice constituted the necessary designation and found for defendant on that claim.

Although not directly relevant here, this ruling did remind me of a little-cited local rule dealing with foreign language documents that we would all do well to remember to avoid situations like this:

. . . . If evidence in a foreign language is included in any appendix, an English translation (along with a certification that the translation is true and correct) shall also be included in the appendix.

D. Del. LR 7.1.3(d)

Normally I wouldn't just give out tips like this, but hey, when you're here, you're family.

Salute!

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