Opinion
Case No. 16-cv-06370-EJD (VKD)
03-04-2020
OPTRONIC TECHNOLOGIES, INC, Plaintiff, v. NINGBO SUNNY ELECTRONIC CO., LTD., et al., Defendants.
ORDER RE DISCOVERY DISPUTE RE DEFENDANT'S RULE 33(D) INTERROGATORY RESPONSES
Re: Dkt. No. 586
The parties dispute whether defendant Ningbo Sunny Electronic Co. ("Ningbo Sunny") may respond to plaintiff Optronic Technologies, Inc.'s ("Orion") post-judgment interrogatories by referring to records, pursuant to Rule 33(d) of the Federal Rules of Civil Procedure, and if so, whether Ningbo Sunny has complied with the requirements of that Rule. Dkt. No. 586. The Court has reviewed the parties' joint submission and concludes this matter is suitable for resolution without a hearing. Civ. L.R. 7-1(b).
In its responses to Orion's Interrogatories Nos. 1, 2, 5, 6, 9, 10, 12, 16, and 17, Ningbo Sunny relies almost entirely on documents it has produced in response to Orion's post-judgment document requests. For each such response, Ningbo Sunny "directs Orion to the documents produced concurrently herewith in response to Orion's post-judgment request for production number [X]." Dkt No. 586-2. Orion argues that Ningbo Sunny may not respond to interrogatories by referring to documents here because the cited documents are "largely in Mandarin Chinese," and therefore the burden of ascertaining the answers to the interrogatories is greater for Orion than for Ningbo Sunny. Dkt. No. 586 at 2-3. Ningbo Sunny responds that only a "limited" number of the referenced documents are in Chinese. Specifically, it says that "all" or "almost all" of the referenced documents responsive to Interrogatories Nos. 2, 5, 9, and 10 are in English, and that "most" of the referenced documents responsive to Interrogatory No. 6 are in English. Id. at 4. Ningbo Sunny does not say whether the 13 documents cited in response to Interrogatories Nos. 1, 12, 16, and 17 are in English or Chinese. See id. Ningbo Sunny argues that it is as burdensome for it to extract answers from the Chinese language documents as it is for Orion. Id. at 5.
Ningbo Sunny's response to Interrogatory No. 12 also includes a narrative response. Dkt. No. 586-2 at 7. --------
Rule 33(d) provides in relevant part:
If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party's business records . . . and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by specifying the records that must reviewed, in sufficient detail to enable, the interrogating party to locate and identify them as readily as the responding party could[.]Fed. R. Civ. P. 33(d)(1). Few courts have addressed the question of whether a party may respond to interrogatories by citing documents that are in a language other than English. However, the courts that have considered this issue uniformly agree that, even if referring to records would otherwise be an appropriate response to an interrogatory, such a response is not permitted unless the party provides a translation of the documents. See, e.g., Gamevice, Inc. v. Nintendo Co., No. 18-cv-01942-RS (TSH), 2019 WL 2763008, at *2 (N.D. Cal. July 2, 2019); Shinedling v. Sunbeam Prod. Inc., No. ED CV 12-438-CJC (SPx), 2013 WL 12171959, at *7 (C.D. Cal. Oct. 25, 2013); Invensas Corp. v. Renesas Elecs. Corp., No. 11-448-GMS-CJB, 2013 WL 12146531, at *6 (D. Del. May 8, 2013); Nature's Plus Nordic A/S v. Natural Organics, Inc., 274 F.R.D. 437, 440-41 (E.D.N.Y. 2011).
The parties disagree regarding the extent to which Ningbo Sunny has relied on documents in English as opposed to Chinese for its responses to Orion's interrogatories. The record does not permit the Court to resolve this disagreement. Where Ningbo Sunny relies on documents in English, Orion has offered no reason for the Court to conclude that Ningbo Sunny's responses fail to comply with the requirements of Rule 33(d). However, Ningbo Sunny may not rely on documents in Chinese for its response to Orion's interrogatories. Where Ningbo Sunny has done so, it has two options: It may amend its responses to provide narrative answers that do not rely on Chinese language documents, or it may provide English translations of the "limited" number of Chinese language documents on which it relies.
Ningbo Sunny must serve amended responses to Interrogatories Nos. 1, 2, 5, 6, 9, 10, 12, 16, and 17, consistent with the requirements of this order, no later than March 11, 2020.
IT IS SO ORDERED. Dated: March 4, 2020
/s/_________
VIRGINIA K. DEMARCHI
United States Magistrate Judge