When Litigant Fails to Properly Request a Deposition Interpreter
Texas Appellate Court Imposes Sanctions Against Pro Se Party Who Sought a Protection Order from Testifying Without a Deposition Interpreter
In some cases the failure to make a proper request for a deposition interpreter services involves sanctionable conduct on the part of a litigant. In Buttler v. Sutcliffe, No. 02-15-00319-CV, 2016 WL 4491224 (Tex. App.—Fort Worth 2016) (“Buttler”), the Plaintiff, Dinna Buttler, who appeared pro se sued the Defendant, John T. Sutcliffe (“Sutcliffe”), over a contract dispute. The parties each participated in discovery, with Buttler having no trouble answering Sutcliffe’s written discovery requests and responding to his requests for disclosure, interrogatories, and admissions. As part of discovery, Sutcliffe scheduled May 29, 2015, to depose Buttler. Sutcliffe asked Buttler to propose any other dates she could take a deposition, but she only responded with a letter stating that she would not be present on May 29; she did not propose other dates and did not appear on May 29.
The Court Ordered the Plaintiff to Appear for a Deposition
At a hearing on June 25, 2015, the court ordered Buttler to appear for a deposition on July 17, 2015. In part, the order stated that “[t]he only persons allowed to be present at said deposition are [appellant], [appellee], the attorneys for either party, a court reporter[,] and a translator (if needed).” Buttler v. Sutcliffe, 2016 WL 4491224, at *1. Immediately after the hearing, Sutcliffe notified Buttler of the time and place of the deposition and informed her that no deposition interpreter would be provided because she had not requested one at the hearing.
The Plaintiff Sought a Protection Order Not to Testify Without a Spanish Deposition Interpreter
On July 16, 2015, just one day before the scheduled deposition, Buttler filed a motion for a protective order, claiming that she was unable to be deposed without a Spanish interpreter. The next day, Butler appeared for the deposition but did not complete it. Later that day, she amended her motion for a protective order, claiming that when she appeared for the deposition at the office of Sutcliffe’s attorney, he would not allow the person who drove Buttler to the deposition to enter the building. She also claimed that the attorney and another man intimidated her and locked her in the building. There was not a Spanish interpreter present at the deposition. In her pleading, Buttler alleged the following:
I arrived with the requested documents and attempted to undergo the deposition, but I was unable to fully understand what was being asked. My native country is Honduras and my deceased husband’s native country is Mexico. Spanish is my native language . . . . The manner in which this deposition was conducted frightened me and I feared for my safety. . . .
I am unable to be deposed without a translator and I request that I be protected from appearing for a deposition until one can be provided. Further, I request that the deposition be held at a location where my safety can be assured and where I am not held captive.
Buttler v. Sutcliffe, 2016 WL 4491224, at *2.
The Defendant Filed for Sanctions Against the Plaintiff for Plaintiff’s Delay
In his response, however, Sutcliffe alleged that shortly after Buttler’s deposition began, she suddenly claimed that that she did not understand English and left the deposition. A transcript of the deposition revealed that before Buttler left the deposition, “she repeatedly stated that she did not understand questions and that she was ready to go home. As she left the deposition, she stated, ‘You don’t provide me interpreter.’” Buttler v. Sutcliffe, 2016 WL 4491224, at *7, n.3. With his responsive pleading, Sutcliffe filed a motion for discovery sanctions, including dismissal of Buttler’s suit and attorney’s fees and expenses.
At the hearing on Sutcliffe’s motion for sanctions against Buttler, the court observed that someone in the courtroom was trying to assist Buttler, who said it was her Spanish interpreter. Because the interpreter was not certified, the court did not allow him to assist Buttler, after which she appeared to have difficulty understanding questions while testifying. Later during the hearing, however, Buttler responded directly to a statement made by Sutcliffe’s attorney, to which the court exclaimed to Buttler, “You appear to be understanding pretty well right now.” Buttler v. Sutcliffe, 2016 WL 4491224, at *7, n.4.
The Court Denied the Plaintiff’s Second Request for a Spanish Court Interpreter at the Joint Hearing to Reconsider the Sanctions
The court granted Sutcliffe’s motion for sanctions and ordered Buttler to pay Sutcliffe $4,500 for eighteen hours of attorney’s fees. When Buttler did not pay, Sutcliffe asked the court to dismiss Buttler’s case. However, Buttler filed a motion asking the court to reconsider its sanctions order. She claimed that sanctions were improper because she appeared for the deposition as ordered and she should not be punished for leaving a deposition when there was no deposition interpreter provided for her. In her motion for reconsideration, Buttler requested a hearing at which she could have a Spanish court interpreter present. However, at a hearing on the joint motions of the parties, the court granted Sutcliffe’s motion to dismiss the case with prejudice and ordered Buttler to pay $1,500 in attorney’s fees. Buttler appealed the court’s decision.
The Appellate Court Justified the Trial Court’s Sanctions
On appeal, Buttler argued that the trial court could not properly sanction her for leaving the deposition that the court had ordered her to attend because there was no Spanish deposition interpreter at the deposition. In determining whether the sanctions against Buttler were just, the court held that pursuant to Tex. R. Civ. P. 215.3, a court may impose sanctions:
If the court finds a party is abusing the discovery process in seeking, making or resisting discovery or if the court finds that any interrogatory or request for inspection or production is unreasonably frivolous, oppressive, or harassing, or that a response or answer is unreasonably frivolous or made for purposes of delay . . . .
The court determined that the rule includes failing to attend a deposition.
In applying the rule, the court applies a two-part test to determine if a sanction is just. It will uphold the sanction if: (1) a direct relationship exists between the offensive conduct, the offender, and the sanction imposed; and (2) the sanction is not excessive, which means it is no more severe than necessary to satisfy its legitimate purpose. The purpose of the rule is to secure compliance with discovery, to deter other litigants from future noncompliance, and to punish violators. Buttler v. Sutcliffe, 2016 WL 4491224, at *5 (citing Sheffield Dev. Co. v. Carter & Burgess, Inc., No. 02-11-00204-CV, 2012 WL 6632500, at *5 (Tex. App.–Fort Worth Dec. 21, 2012).
The court found that the sanctions against Butler were just and that the trial court did not abuse its discretion in ordering the sanctions for several reasons. First, Buttler’s initial lack of cooperation in scheduling the deposition required the court to order her to appear to be deposed. Second, Buttler had notice well in advance of the deposition that there would be no Spanish deposition translator, yet she decided to wait until the day before the scheduled deposition to file her motion for a protective order requesting a Spanish deposition interpreter. Third, Buttler chose to appear at the deposition knowing that there was no Spanish deposition interpreter and participated in the deposition without an interpreter. Fourth, Buttler decided to leave the deposition without having obtained a ruling on her motion for a protective order.
The Plaintiff Failed to Preserve for Appeal Her Request for a Spanish Court Interpreter
Finally, Buttler argued that she was entitled to a court interpreter at the joint hearing on Sutcliffe’s motion to dismiss the case and her motion for reconsideration of discovery sanctions. In her motion for reconsideration, Buttler referred to Texas Rule of Civil Procedure 183, which authorizes the court exercise its discretion to appoint an interpreter, but it is not required to do so. Buttler requested the appointment of a Spanish interpreter for her hearing on her motion for reconsideration, but the court did not rule on that issue. At the joint hearing on both parties’ motions, Butler did not repeat her request for a Spanish court interpreter or obtain a ruling on the request that she made in her own motion. As a result, the court held that Buttler failed to preserve an error on appeal concerning the lack of a Spanish court interpreter at that hearing and affirmed the trial court’s sanctions against her.
How Limited English Proficiency Litigants Can Avoid Sanctions for Deposition Misconduct
• Cooperate in scheduling depositions and discovery;
• Expressly make known, well in advance of any deposition or hearing, the need for a deposition interpreter;
• If you have made a proper request for a deposition interpreter, do not participate in the deposition until a court has ruled on your request;
• If you attend a deposition, do not walk out of the deposition unless all parties agree to terminate the deposition or the court authorizes you to do so;
• Understand the applicable rules of civil procedure for appointing court interpreters;
• Always properly preserve on the record any translation issues to be raised on appeal.
Contact legal document translation and deposition interpreting service All Language Alliance, Inc. to reserve a Mandarin interpreter, a Korean interpreter, a Greek interpreter, a Japanese interpreter, a Thai interpreter, an Amharic interpreter, a Spanish interpreter, a Cantonese interpreter, a Tamil interpreter, a French interpreter, a German interpreter, a Russian interpreter, a Hungarian interpreter, an Armenian interpreter, a Cameroonian Pidgin English interpreter, a Cameroonian Creole interpreter; or any other foreign language interpreter for an upcoming deposition.
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