Navigating Deposition Corrections for Interpreted Testimony
How to Properly Correct Deposition Interpreting Errors
We’ve blogged about objections to translation and interpretation during interpreted depositions and about correcting deposition translation or interpreting errors after the interpreted deposition has taken place. In the recent case of Cerda v. Cillessen & Sons, No. 19-1111-JWB, 2020 U.S. Dist. LEXIS 139456 (D. Kan. Aug. 5, 2020), a Kansas federal court examined the scope of permissible changes to deposition testimony when a deposition interpreter was used during the interpreted deposition. This issue arises when a deponent’s native language differs from English, the language used at the deposition. As more cases involve multilingual parties, attorneys should understand how to properly correct errors caused by inaccurate interpretations.
Errata Sheet with 30 Changes to Spanish Deposition Interpreting
In Cerda, the plaintiff only spoke Spanish, so a Spanish deposition interpreter was used for his deposition in his lawsuit alleging Family Medical Leave Act and Fair Labor Standards Act violations. After receiving the deposition transcript, the plaintiff’s attorney returned an errata sheet with 30 changes to the plaintiff’s answers. The defendant moved to strike the corrections.
The Court’s Reasoning on Rule 30(e) Changes
Federal Rule of Civil Procedure 30(e) allows deponents to make changes to deposition transcripts within 30 days. However, changes must be limited to non-material changes or material changes justified under the three-prong Burns rule. The Burns rule permits changes if: (1) the deponent was cross-examined on the issue during the deposition; (2) the change is based on newly discovered evidence; or (3) the change clarifies obvious confusion in the original answer.
The court held that changes made in order to correct inaccurate deposition interpretations are permissible, especially when the deponent’s attorney objected to the interpretation during the deposition. However, “blatant rewrites” that fundamentally alter the substance of answers are prohibited.
In Cerda, the court permitted changes that were consistent with the plaintiff’s attorney’s objections during the interpreted deposition about incorrect translations. But the court struck changes that substantively altered the plaintiff’s original testimony.
Key Takeaways for Correcting an Interpreted Deposition Transcript
When working with non-English-speaking deponents, attorneys must account for potential interpretation issues to avoid disputes over deposition transcript changes. Here are the key steps counsel should take:
• Select only high quality, certified interpreters to minimize translation inaccuracies from the outset.
• Use check interpreters during the deposition to contemporaneously verify interpretations, and object on the record to preserve objections.
• Limit errata changes to those remedying translation errors. Avoid attempts to substantively rewrite or fundamentally change answers.
Following this guidance when working with interpreted depositions will allow attorneys to efficiently resolve legitimate interpretation disputes through the Rule 30(e) process. Blatant attempts to materially alter testimony after-the-fact will face scrutiny. By understanding the permissible scope of changes and taking proactive steps during the deposition, lawyers can effectively navigate interpreted testimony.
Get in touch with the deposition and arbitration interpreting service All Language Alliance, Inc. to hire competent deposition interpreters for remote interpreted video depositions and for on-site depositions where deponents will speak French; German; Tigrinya; Cantonese; Shanghainese; Thai; Sinhala; Persian; Armenian; Tagalog; Punjabi; Mandarin; Russian; Thai; Vietnamese; Kunama; Mongolian; Anuak; Somali; Polish; Hebrew; Tamil; Amharic; Mennonite Low German; rare Chinese dialects; and other rare and common foreign languages. We also provide check deposition interpreters for high-stakes depositions where deponents speak Mandarin; Cantonese; Japanese; Korean; Thai; Vietnamese, and other less common foreign languages.
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