How to Avoid Sanctions for Deposition Misconduct at Foreign Language Depositions
Two Attorneys Sanctioned in Putative Class Action Suit for Influencing Client to Commit Perjury in Tagalog Deposition
Foreign language depositions with on-site deposition interpreters and with video remote deposition interpreters sometimes lead to the imposition of sanctions for deposition misconduct. Some sanctions are imposed against the attorneys for both parties, or the attorney for one party; others involve sanctionable conduct on the part of a litigant; and in some cases, the courts determine that sanctions were not appropriate. In the case described below, a Tagalog-speaking deponent committed perjury when testifying through a Tagalog deposition interpreter and was subject to sanctions, yet the court also imposed sanctions on the attorneys as a result of their influence over their client.
Documents Translated from Tagalog to English Conflicted with the Plaintiff’s Translated Testimony
Baricuatro v. Industrial Personnel and Management Services, Inc., Civil Action No. 11-2777, 2013 WL 3367197 (E.D. La. 2013) (“Baricuatro”) involves a putative class action lawsuit brought by foreign shipyard workers in Louisiana claiming employment violations by their respective employers. In the course of the litigation, some of the defendants filed motions for contempt and sanctions against one of the class action plaintiffs, Erwin Realin, after he made substantive changes to his oral testimony and to sworn written declarations and affidavits that were translated from Tagalog to English and filed with the court. The defendants sought dismissal of the case against them, as well as attorney’s fees and costs associated with Realin’s deposition, as a sanction. Baricuatro, 2013 WL 3367197, at *1.
The court recognized its inherent power to punish for contempt and to impose sanctions to promote and protect the authority of the court. Like the court in Lobrow, however, this court also acknowledged the importance of discretion and restraint in exercising its inherent power to sanction, particularly with respect to the dismissal of claims as a sanction, which should be reserved for only the most contemptable of misconduct by litigants. The court expressed that “[I]t is not a party’s negligence—regardless of how careless, inconsiderate, or understandably exasperating—that makes conduct contumacious; instead, it is ‘the stubborn resistance to authority’ which justifies a dismissal with prejudice.” Baricuatro, 2013 WL 3367197, at *2. The court added: “A party’s perjury, with no attempt to offer the truth after contradictory testimony is revealed, is one example of . . . conduct sufficient to support dismissal as a sanction.” Baricuatro, 2013 WL 3367197, at *2. The court expressed that “lesser sanctions” ought to be imposed when the conduct is that of the lawyers.
The Court Focused on Two Attorneys’ “Misguided Influence” Over Their Client
In assessing Realin’s contempt, the court identified “a variety of falsehoods in Realin’s sworn testimony and/or written declarations” that warranted sanctions. Baricuatro, 2013 WL 3367197, at *2. As the court noted:
there [was] ample fodder in the lengthy deposition testimony . . . and sworn declarations of Realin . . . to conclude that his internally inconsistent, sometimes self-contradictory, often confusing and sometimes evasive testimony [was] not credible and should be given no weight, particularly when the materials include clear falsities.
Baricuatro, 2013 WL 3367197, at *2. However, the court could not clearly and conclusively find that Realin’s conduct was so intentionally and willfully false concerning material matters to conclude that he perjured himself. Instead, the court considered other factors, including the misguided influence of two of Realin’s own lawyers.
For example, the court considered that even though Realin, who is a native Filipino, speaks, reads and understands some English, it is not his first language. At his deposition, Realin required a Tagalog deposition interpreter to interpret the deposition questions and his answers. The transcript of his Tagalog deposition testimony revealed language barriers that resulted in Realin misunderstanding many questions and answers throughout his deposition. Numerous times the court had to clarify that the court interpreter’s job was “‘simply to repeat word for word everything’ without ‘trying to explain things to the witness.’” Baricuatro, 2013 WL 3367197, at *2. Often, the lawyer posing questions misunderstood Realin’s answers as they were rendered by the Tagalog deposition interpreter. Likewise, the Tagalog deposition interpreter often needed to have questions repeated and provided incomplete translations. The Tagalog deposition translator explained that some English words used by the lawyers, such as the word “substandard” had no comparable counterpart in Tagalog.
Even more relevant to the court was its duty to consider the role of Realin’s lawyers, who exercised “significant, and sometimes misguided, influence over the conduct and activities of plaintiffs in this case.” Baricuatro, 2013 WL 3367197, at *3. Realin testified that he sometimes signed English documents without fully reading or understanding them. The court observed that Realin was not sophisticated in business matters, contracts, and law. In such matters he was fully susceptible to his attorneys’ directives. Realin testified that two of his lawyers had him sign a sworn written declaration without reading it to him or having it translated it into Tagalog for him. In light of all of these considerations, the court could not conclude that the inconsistencies between what Realin swore to in writing and what he testified to in his oral deposition were the result of perjured testimony solely attributable to Realin, as opposed to the product of his lawyers’ misguided influence. In fact, Realin admitted on several occasions during his deposition that parts of his statements and declarations were inaccurate, incomplete, misunderstood, even untrue, which he attempted to correct.
The Court Could Neither Excuse nor Strictly Sanction Plaintiff’s “Perjured” Testimony
Because of this, the court could not conclude that Realin’s deposition testimony amounted to perjury resulting from his “willful and intentional disregard for the solemnity of the oath and stubborn resistance to authority, as opposed to [his] mistake, misunderstanding, misapprehension or misguided willingness to sign whatever his counsel drafted for his signature.” Baricuatro, 2013 WL 3367197, at *3. Thus, the court held that dismissal of Realin’s claims was an unduly harsh and inappropriate sanction under these circumstances. Nevertheless, the court did identify undeniable falsehoods in Realin’s testimony and sworn written statements “that no manner of explanation, language difficulty, cultural difference or lawyer influence” could excuse, which demanded consequence. Accordingly, the court imposed against Realin only lesser discovery and monetary sanctions, including partial attorney’s fees and the fees of the Tagalog deposition interpreter. The court also imposed sanctions against Realin’s attorneys for the role they played in the violations.
Lessons Learned on Deposition Misconduct Sanctions:
• Deposition interpreter services play a critical role in the procedural and substantive dynamics of litigation. Choose your deposition interpreters wisely.
• Deposition misconduct sanctions can have evidentiary as well as financial consequences in the case for both the litigants and the litigators.
• It is the attorney’s obligation to ensure that all foreign language-speaking clients and witnesses receive, review, and understand all translated written declarations and documents that they sign and submit to court.
Contact deposition interpreting, Apostille and international archival research service All Language Alliance, Inc. to retain competent deposition interpreters in Mandarin, Filipino, Polish, Turkish, German, Amharic, French, Tagalog, Mongolian, Korean, Sinhala, Greek, Nepali, Tamil, and other common and rare, exotic foreign languages, and obtain certified English translation of affidavits written in any foreign language.
#alllanguagealliance #depositioninterpreting #depositioninterpreter #depositiontranslator #depositiontranslationservice #courtinterpreter #courtcertifiedinterpreter #courttranslator #legalinterpreter #legaldepositioninterpreter #remotedepositioninterpreters #videodepositioninterpreter #Zoomdepositioninterpreter #Zoomdepositiontranslator #videodepositiontranslator #depositionmisconductsanction #Tagaloginterpreter #Tagalogdepositioninterpreter #depositionmisconductsanction
Up Next: Breach of Contract Action Between Vietnamese Friends that Had No Written Agreement