Defendant Admonished for Not Accounting for English-Mandarin Deposition Interpreting Time in Deposing Mandarin-Speaking Plaintiffs
Deposition interpreter and legal translator services play a critical role in any litigation involving parties or witnesses who speak a foreign language or involving documents written in a foreign language. Using a legal deposition interpreter can create its own evidentiary and procedural issues, which sometimes become contested. It is not uncommon for litigants to contest a deposition interpreter’s qualifications, omit the translator’s affidavit that renders the translated document to be inadmissible, or even question the accuracy of a translation. Choosing a reputable court-certified interpreter for an on-site deposition, or for a remote video deposition via Zoom can help avoid many of these issues.
One issue that sometimes arises when using a legal interpreter at a deposition is that attorneys and parties don’t often think about is the imposition of sanctions. This article discusses a court’s denial of a defendant’s motion for sanctions against the plaintiff because of the defendant’s own failure to anticipate and account for the use of a deposition interpreter. It discusses the local rules for sanctions that led to the court’s decision regarding the use of a Mandarin court interpreter at a deposition.
Synology Inc. v. Via Licensing Corporation
Case No. 22-cv-01405-TLT (TSH), 2023 WL 3598468 (N.D. Cal., May 23, 2023).
In Synology Inc. v. Via Licensing Corporation (“Synology Inc.”), the parties agreed that in conducting discovery, they each would be entitled to a maximum of ten witness depositions pursuant to Fed. R. Civ. P. 30(b)(6), with each deposition limited to a maximum of seven hours. The defendant, Via Licensing Corporation (“Via”), traveled to Taipei, Taiwan, to depose nearly all of Synology’s corporate representatives over a five-day period. Because Synology’s witnesses were native Mandarin speakers, Synology notified Via that a Mandarin deposition interpreter would be required and that Synology would supply a Mandarin interpreter at the on-site depositions. At no time prior to the depositions was there any communication between the parties contesting the seven-hour time limit on the interpreted deposition testimony.
During the discovery process, Via motioned the court to impose sanctions against Synology because its need for a Mandarin deposition interpreter added significant time to each witness’s testimony, thereby detracting from the allotted time Via had to depose each witness. Via claimed this problem was exacerbated because Synology used a Mandarin “check” interpreter during the deposition. The Mandarin “check” interpreter observed the primary deposition interpreter and corrected the lead Mandarin deposition interpreter several times during the depositions, which consumed even more time. Additionally, Via claimed that Synology’s witnesses were unprepared in several areas of their testimony. To remedy these problems, Via requested additional deposition time, or, in the alternative, evidentiary sanctions limiting Synology’s objections to Via’s use of the deposition testimony. Via also requested monetary sanctions.
Despite Via’s assertions that Synology’s use of two deposition interpreters for seemingly unprepared witnesses prejudiced Via’s discovery, the court denied Via’s request for sanctions. Instead, the court admonished Via for its own unpreparedness with respect to the use of a deposition interpreter, noting that Via was put on notice about the use of the Mandarin deposition interpreter at least one month prior to the depositions. Addressing the importance of the use of a deposition interpreter, the court stated:
Anyone with common sense understands the significant impact a translator has on a deposition: Every single question and answer needs to be spoken twice, first in the language of the speaker, and second in the language of either the witness or the questioning attorney. Further, it is a common practice to bring a check translator to a deposition to keep your opponent’s translator honest. You can’t say with a straight face that you didn’t know that using a translator would significantly slow down a deposition because of course you knew that; everyone knows that.
Synology Inc., 2023 WL 3598468, at *1. The court held that because Via should have expected that using a Mandarin deposition interpreter was going to slow down the depositions but did not seek to alter the time limitation to account for that time, the court held Via to its agreement to limit each deposition to seven hours. Furthermore, as to Via’s claim that Synology’s Mandarin check interpreter corrected the primary Mandarin deposition interpreter a significant number of times, the court simply admonished, “But whose fault is that?” Synology Inc., 2023 WL 3598468, at *2.
In denying Via’s motion for sanctions, the court advised the parties that it is “helpful for parties to work out procedures in advance of depositions, particularly in a situation like this where there were multiple depositions on successive days in a foreign country.” Synology Inc., 2023 WL 3598468, at *2. The court also stated that “to avoid a bait-and-switch, courts should generally hold parties to their agreed procedures unless something genuinely unexpected comes up.” Synology Inc., 2023 WL 3598468, at *2.
With respect to Via’s claim that Synology’s corporate witnesses were unprepared to testify on certain subjects, the court found that there was “a complete disconnect between the alleged wrong and the requested remedy.” Synology Inc., 2023 WL 3598468, at *2. Normally, when a deposition witness is unprepared on certain subjects, the remedy is to compel further discovery on those subjects. Synology, Inc., 2023 WL 3598468, at *2 (citing Baird v. Blackrock Institutional Trust Company, N.A., 2019 WL 365845 (N.D. Cal. Jan. 30, 2019)). However, instead of asking for additional deposition time to address the specific topics on which the witnesses were unprepared to testify, Via requested an additional seven hours of deposition time generally. The court determined that “[e]ven if the Court shared Via’s interpretation of that testimony, [it] would come nowhere close to justifying seven hours of more testimony.” Synology Inc., 2023 WL 3598468, at *2. The court denied the remedy Via requested, reasoning that:
Via is represented by capable counsel and knows what it wants. Even if the deposition excerpts . . . might have justified an hour or two of additional 30(b)(6) testimony limited to those specific topics, the Court notices that Via has not asked to fly to the other side of the world for one or two more hours of deposition.
Synology Inc., 2023 WL 3598468, at *2, n.1.
Finally, the court also denied Via’s request for sanctions because its request violated the local civil procedure rules in the Northern District of California. Local Civil Rule 7-8 (Motion for Sanctions—Form and Timing) provides that “[a]ny motion for sanctions . . . must be separately filed . . . and must comply with any applicable FRCivP [regarding notice].” Local Civil Rule 7-8(a) & (c). Because Via failed to follow the local rules of civil procedure for requesting sanctions, the court denied its motion for sanctions.
In this case, the relevant issue was not an examining attorney’s misuse of a deposition interpreter of record or delay in the discovery process that warranted sanctions. Rather, it was the failure of the motioning attorney to anticipate and account for the use of the deposition interpreter and the local rules for sanctions that led to the court’s decision.
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