With the uptick in cross-border litigation, you will likely need to take and defend depositions of non-English speaking witnesses. These deponents will likely need a translator, because they do not speak English or simply are uncomfortable testifying in their non-native language. You should not underestimate what is entailed when using a translator at a deposition. This article discusses guidelines so that you may minimize time and expense and maximize your ability to create a clear, accurate and useable transcript.
Identify the Need for Foreign Language Depositions Early in the Case
The time to determine your need to depose or defend the depositions of, non-English speaking witnesses is at the very outset of the case, and certainly before a Rule 16 federal court conference or equivalent state court preliminary conference. Prior to the Rule 16 conference, the parties will have exchanged their Rule 26(a)(1) "initial disclosures," which, among other things, list the names and addresses of individual likely to have discoverable information, along with the scope of their information. Review these disclosures carefully to identify potential non-English speaking witnesses.
At the Rule 16 conference or state counterpart, you should inform the court of anticipated depositions of non-English speaking witnesses and request the court to establish a Foreign Language Deposition Protocol.
This protocol, at a minimum, should address the following:
- Whether a translator is necessary. While some witnesses may be proficient in English, they may still request to be deposed in their native language. Consider two things before you accede to such a request. First, if you noticed the deposition, your client will pay for the translator unless the court orders otherwise or you and your opposing counsel make other cost-shifting arrangements. Second, a translator may undermine the effectiveness of your examination. Translations are not simply word-for-word substitutions. They may change the leading nature of your questions and negatively impact your cross.
- The time allowed for the deposition of each non-English speaking witness. Fed. R. Civ. P. 30(d)(1) and limits depositions to one day of seven hours. A translator increases the duration of the deposition. Indeed, it may double the time.
- Whether to require the production of translated exhibits prior to the deposition. Consider stipulating with opposing counsel the production of certified translations in advance of depositions. While this may enable the witness to prepare and "rehearse" testimony with counsel, the efficiencies it promotes (i.e., by allowing you to verify the translations and resolving translation disputes in advance of the deposition) outweighs any perceived disadvantages. Absent such an agreement, ask the court to include that procedure in the Foreign Language Deposition Protocol. If the court does not order advance production of exhibits, ask the court for permission to lodge translation–related objections for a fixed period (e.g., 60 days) after receipt of the deposition transcript.
- The translation method. Translations can be "simultaneous" or "consecutive." With simultaneous translation, the interpreter speaks contemporaneously with the speaker whose words are being translated. With consecutive translation, the interpreter allows the speaker to complete his or her testimony (or counsel’s objection) prior to giving the translation. Consecutive translation takes more time than simultaneous translation, but it results in a more accurate translation and a cleaner transcript.
- The use of "check" interpreters. Remember that translation is not a science. Translators may also make mistakes that materially change the nature of the question or the testimony. To guard against such errors, and to promptly correct – or, at a minimum, object to – such translation errors, the deposition protocol should enable a party defending the deposition to use its own "check" interpreter. This interpreter attends the deposition and may make on the record objections to translations believed to be inaccurate. If the court refuses to allow a check interpreter to speak on the record, then request that your check interpreter attend the deposition, so that he or she can advise you of any translation issues that need to be addressed and/or objected to immediately.
Select the Right Translator
Retaining the "right" translator is critical. First, you must ensure that the translator has mastery over both the language and any individual dialect in which the witness will testify. Second, the translator must also be comfortable in the terminology specific to the industry and dispute at issue. This is especially important in business litigation, when specialized "business" terms and jargon are frequently used. Be proactive. Talk to your colleagues. Get recommendations. If possible, attend a trial where the translator is being used and make your own evaluation.
Use a Translator to Prepare for Your Client's Deposition
As every litigator knows, a deposition is not an everyday conversation. You should prepare your client accordingly and have a mock cross-examination if possible. If your client does not speak English, deposition preparation can be challenging. To prepare a non-English speaking client, using a translator during preparation sessions is strongly recommended. If you will use a check translator at the deposition, also consider using the same translator to assist in the pre-deposition preparation.
Protect the Record at the Deposition
When defending your client's deposition, take care to make the same objections you may interpose at any deposition, but also be vigilant in ensuring the accuracy of the translations. As discussed, one way to protect the record is by using a check interpreter. Absent that, have a representative for your client who speaks the foreign language attend the deposition. While this representative will not be able to make translation-related objections on the record, she can alert you of translation errors, so that you may make objections on the record.
Another way to ensure accurate translations is to videotape the deposition and preserve the right to make translation-related objections until some period after the conclusion of the deposition. Because the actual deposition transcript will be in English, the video of the deposition will be the only true record of the foreign language translations.
Non-English depositions present unique and difficult challenges. Following these recommendations will help you meet those challenges and succeed.
Alexander D. Widell is a partner with Moritt Hock & Hamroff LLP in Garden City, New York.
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