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When Do You Need an English Translator in Civil Depositions?

By Robert E. Sumner, IV, and Charles R. Scarminach – August 31, 2016

“Make sure you understand the question being asked of you, and only answer that question.” All litigators have given this advice to clients preparing for deposition. For clients who speak English as a second or third language, understanding the question may only be possible through the use of a translator. If a non-English-speaking client is denied the use of a translator, the potential harm to their legal interests and the general truth-seeking process is significant. In fact, access to a translator has been deemed so vital to the judicial system that Congress has enacted legislation granting the right to a translator in all “judicial proceedings instituted by the United States.” 28 USCS § 1827(b)(1). In a civil deposition, not including cases instituted by the United States, there is no such right to a translator. Rule 30 of the Federal Rules of Civil Procedure is silent on when it is appropriate to use a translator. The decision to allow the use of a translator at deposition is left to the discretion of the court. See Bethlehem Area Sch. Dist. v. Zhou, Case No. 09-3493, 2011 U.S. Dist. LEXIS 45661 (E.D. Pa. Apr. 26, 2011); EEOC v. Beauty Enters., Case No. 3:01-cv-378, 2002 U.S. Dist. LEXIS 13520 (D. Conn. May 21, 2002); Naqvi v. Oudensha America, Inc., Case No. 88-c-6966, 1991 U.S. Dist. LEXIS 502 (N.D. Ill. Jan. 16, 1991); Tagupa v. Odo, 843 F. Supp. 630 (D. Haw. 1994).

Determining when to use a translator can be problematic because there is little related case law to guide a judge’s decision. Judges are left to make a judgment call on whether a witness with questionable English-speaking ability should be forced to provide deposition testimony without a translator. This subjective standard can be particularly troubling when the witness is the defendant or corporate representative in a high-stakes litigation matter.

Courts have generally addressed using a translator at deposition in one of two ways: (1) weighing evidence of the witness’ ability to communicate in English to make the determination or (2) providing a translator regardless of evidence of the witness’s ability to communicate in English. An example of the first line of cases is seen in Naqvi v. Oudensha America, Inc., Case No. 88-c-6966, 1991 U.S. Dist. LEXIS 502 (N.D. Ill. Jan. 16, 1991). In Naqvi, the defendant employer requested that its office manager be permitted to use a Japanese interpreter at her deposition. Id. at 2. The magistrate judge denied the defendant’s request, and the defendant moved the district court for reconsideration of the ruling. Id. The district court considered the following evidence in its review of the magistrate judge’s order: (1) the office manager managed the office and directed all employees in English; (2) the office manager studied English in college and was hired because of her English skills; and (3) the defendant did not deny the office manager’s ability to speak English. Id. at 5. The district court affirmed the order and concluded that the office manager had “sufficient English skills to comprehend the judicial proceedings, understand questions presented to her at her deposition, and answer questions in English.” Id. at 6.

An example of the second line of cases is available in REFCO v. Afincomex, Case No. 93-cv-2251, 1993 U.S. Dist. LEXIS 16787 (S.D.N.Y. Nov. 30, 1993). In REFCO, Afincomex insisted that Afincomex’s principal, German Rodriguez, be allowed to use a Spanish-language interpreter at deposition. Id. at 1. The party taking the deposition “objected to the request, on the ground that Rodriguez is fully fluent in English, and that the presence of the interpreter would add expense, complicate and delay the deposition.” Id. In support of its objection, the taking party claimed that

Rodriguez possesses advanced degrees from Harvard University and Cambridge University for coursework conducted in English; that he has successfully taken a securities broker licensing examination in English; that he habitually conducts business in English with persons who speak no Spanish, including transactions that are central to [the] lawsuit; and that he converses with his attorneys in English.

Id. In light of these facts, the district court even noted that it was “inclined to believe that the request by Afincomex to have Rodriguez’s deposition conducted through an interpreter is made in bad faith.” Id. at 2. Ultimately, however, the district court allowed the use of the interpreter and reasoned that it was “reluctant to deny the opportunity for an interpreter to a deponent whose first language is not English.” Id.

Given the uncertainty surrounding how a court will rule on this issue of using a translator, attorneys seeking to use a translator are tasked with performing a difficult strategic analysis. From the standpoint of the taking attorney, inserting a translator into the equation means a more cumbersome, time-consuming, and expensive deposition. Additionally, the time delay involved with translation decreases the likelihood of eliciting a spontaneous statement against interest from the witness. The taking attorney must weigh these inconveniences against the possibility that a judge will not look favorably on an attempt to force a witness to be deposed in their second or third language. In contrast, the attorney advocating the use of a translator must consider the credibility ramifications. A skeptical taking attorney will paint the use of the translator as an attempt to hide from tough questions and to intentionally obfuscate the deposition testimony. As was seen in the Afincomex case, when presented with evidence of fluency in English, it is possible for a judge or jury to view the request for a translator as one made in bad faith. A skillful trial lawyer should attempt to defuse these credibility concerns by filing a motion in limine to prevent questions that seek to impugn a witness’s credibility based on the decision to use a translator.

For those parties truly in need of a translator, the issue is ultimately one of fairness. The party facing the daunting task of being subject to a deposition should be allowed to participate in their first language, if needed. Unfortunately for practitioners, courts have done little to clarify the factors that should be analyzed to determine when using a translator is warranted. As business in the United States continues to become more diverse and internationally focused, questions about using a translator in civil depositions will become more commonplace. Trial lawyers should pay careful attention to the advantages and disadvantages associated with using translators to determine if using a translator is in the best interest of their clients.

Robert E. Sumner, IV, is a member and Charles R. Scarminach is an associate at the Charleston, South Carolina, office of Moore &Van Allen, PLLC.

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