Episode 133 - Who Pays the Initial Cost of a Deposition Interpreter?

Charges for deposition interpreters can easily double the cost of the deposition itself. So, who pays, and what's the underlying principle? What if the deponent speaks English but still demands an interpreter? Finally, can courts shift the cost (from one party to another) in some circumstances? All your questions will be answered, in just 19 minutes flat. Today's show notes, like those with every episode, contains a wealth of case citations on point. Check them out, and thanks for listening!

SHOW NOTES:

PayCargo, LLC v. Galbreath, 2021 WL 8895467 (S. D. Fla. Apr. 27, 2021) (party seeking discovery must pay cost of interpreter; denying motion to force deposition without interpreter, where some evidence suggested witness might need interpreter to understand certain highly technical questions)

Matter of Majestic Blue Fisheries, LLC, No. CV 11-00032, 2013 WL 12233715, at *2 (D. Guam June 21, 2013) (party who used interpreter hired by another party in back-to-back deposition must pay their pro rata share of interpreter’s bill, finding that party who needs discovery must pay costs associated with it, and because subsequent party used interpreter, they must pay their share since they also used services to take their depositions”)

Signify Holding B.V. v. TP-Link Rsch. Am. Corp., No. 21CV9472JGKKHP, 2022 WL 3656315, at *3 (S.D.N.Y. Aug. 25, 2022) (court orders defendant to pay for initial cost of interpreter where it designated a native Mandarin speaker; filings showed the witness dealt with plaintiff’s employees in English for years, done extensive business in English, and attested in English to court documents, such that it appeared the use of interpreter was more a convenience than a necessity)

Refco v. Afincomex & Banco Ganadero, No. 93 CIV. 2251 (PNL), 1993 WL 498074, at *1 (S.D.N.Y. Nov. 30, 1993) (defendant allowed to use interpreter during deposition of its principal, but must pay for interpreter based on undisputed evidence that the witness had advanced degrees from Harvard and Cambridge, passed securities licensing exams in English, was fluent in English and did business in English; court added that request for interpreter appeared to be in bad faith)

Stocks v. City of Aurora, No. 13-CV-01141-RBJ-CBS, 2016 WL 9735866, at *3 (D. Colo. May 17, 2016) (where prospective deponent seeks interpreter over objection of noticing party, deponent can seek protective order and, when a deponent requests an interpreter in advance of their deposition, the noticing party can avoid disputes simply by hiring the requested interpreter and later seeking reimbursement)

Passow v. M/V AFRICA GRAECA, No. CIV.A. 09-2550-KDE-S, 2009 WL 4723336, at *2 (E.D. La. Dec. 3, 2009) (order providing, without explanation or reasoning, that if interpreters were required of defense witnesses – all of whom spoke Greek or Tagalog - defendants must bear the costs)

Thompson v. Red Olive Co., No. 14-10620, 2015 WL 687351, at *1 (E.D. Mich. Feb. 18, 2015) (court resolved demand by defendant that noticing plaintiff hire an interpreter by allowing each party to hire, at their own expense, an interpreter if they wished to do so)

Simmons v. Garland, No. 21-CV-1728-SJB, 2024 WL 1468239 at *3 (E. D. N. Y. Mar. 20, 2024) (order denying motion to exclude expert testimony on grounds contemporaneous translation was inaccurate; movant failed to preserve right to review transcript before deposition ended)

Torres v. Rock & River Food, Inc., 2017 WL 4969914 (S.D.Fla.) (“The courts have held that when a deponent can communicate in English the deponent is not entitled to use an interpreter”)

Act II Jewelry, LLC v. Zhu, No. 2:09CV407, 2010 WL 11450509, at *2 (E.D. Va. Feb. 19, 2010) (approving use of interpreter who was clearly qualified to interpret Mandarin speaker’s testimony, even though not technically “certified” as one)

Walls v. Department of Children and Families, Case No. 98-1793-CIV-T-17(E) (unpublished order holding that deposition is not a judicial proceeding, and thus court has no obligation to pay for deposition interpreter; defendant must bear initial cost and may seek to tax expense if it prevails)

Goyette v. DCA Advert. Inc., No. 91 CIV 3518 (KC), 1991 WL 639599, at *1 (S.D.N.Y. Sept. 16, 1991) (use of interpreter disallowed for entirety of deposition, where native Japanese speakers were shown to be fluent in English in both personal and business settings, but would be allowed for help in understanding specific questions that might pose difficulty)

Malpico v. Newman Mach. Co., 107 F. Supp. 2d 712, 714 (W.D. Va. 2000) (plaintiff would not be allowed his own choice of interpreter during deposition conducted before magistrate judge, even though official interpreter did not speak plaintiff’s special dialect of Spanish; held, chosen interpreter could still sufficiently communicate with plaintiff, and court would allow plaintiff to have his own interpreter outside the deposition room to communicate with his lawyer)

Naqvi v. Oudensha America, Inc., Case No. 88-C-6966, 1991 WL 4435 (N. D. Ill 1991) (affirming magistrate’s ruling denying use of interpreter where native Japanese speaker managed office and employees in English, studied English in college)

Lopez–Gomez v. Jim's Place, LLC, 60 F. Supp. 3d. 853, 855 (W.D. Tenn. 2014) (where defendants sought to take the plaintiff's deposition and plaintiff's counsel persuasively demonstrated that his client required the services of an interpreter, defendants were required to bear the cost of that interpreter but could recover those costs pursuant to § 1920 if they later became the prevailing party)

Carbajal v. OMNI Hotels Mgmt. Corp., No. EDCV202485JWHKKX, 2021 WL 6618602, at *3 (C.D. Cal. Nov. 1, 2021) (order allowing additional time for deposition where interpreter was needed)

Mahe v. Cont'l Tire The Americas, LLC, No. EDCV 10-1744-DSF (OPx), 2012 WL 13014611, at *3 (C.D. Cal. Mar. 28, 2012) (finding good cause for an additional three hours of deposition due to consecutive interpretation and importance of the witness to the claims at issue despite alleged duplicative questioning)

Court Interpreters Act, 28 U.S.C.A. § 1827 (West) (outlining circumstances where court can appoint an interpreter; not applicable generally to civil litigation between private parties, but useful for background to see how interpretation issues are addressed)

28 U.S.C.A. § 1920(6) (West) (allowing for taxation of interpreter costs)

Fed. R. Civ. P. 54(d)(1) (allowing recovery of costs, including interpreters)

Fed. R. Civ. P. 26(c)(1) (authorizing court to allocate expenses associated with discovery)

https://www.uscourts.gov/sites/default/files/guide_vol05.pdf (U. S. Courts guide on the use of interpreters)