Are Check Interpreter Costs Recoverable by the Prevailing Party?
Check Interpreter Services for High-Stakes Depositions
Check interpreters are a common practice in high-stakes interpreted depositions, especially in patent litigation, complex class action lawsuits, and international antitrust cases where the consequences of a mistranslation can be catastrophic. But rarely is the use of check interpreters and check translators directly addressed in formal state or federal rules of evidence or civil procedure. So the noticing party and the defending party either have to just make their best guess regarding what type of behavior is acceptable, or they have to seek a court (or stipulated) discovery order that addresses the issue.
As one example of a discovery order that explicitly outlines the procedure for using a check interpreter, we go to In re Telescopes Antitrust Litigation, from the Federal Court in the Northern District of California.
Beyond notifying the parties that a deposition-defending party would be responsible to pay for their own check interpreter, the court issued the following order describing how the check interpreter should be used:
The Parties shall use reasonable efforts at the deposition to resolve any objection to any interpretation or translation in English for the record, and such efforts need not be translated into Chinese. If the check interpreter disagrees with any portion of an interpretation, the check interpreter’s requested correction shall be stated simply for the record. The role of any such check interpreter shall be limited to disputes concerning the interpretation of deposition questions and testimony by the interpreter of record only. When a check interpreter proposes a correction, the interpreter of record need not respond, but may respond briefly to put on record his or her agreement or disagreement with the proposed correction.
In other words—the lead deposition interpreter should not translate the check interpreter’s objections for the witness, and check translators and check interpreters should not correct a witness or get into back and forth debates with the official deposition interpreter.
StarKist On the Hook for Fishy Price-Fixing Scheme
This first case is In re: Packaged Seafood Products Antitrust Litigation. This case was a contentious back and forth that involved many parties and spanned many years and court decisions—we’re going to discuss one particular element—a court order granting in part and denying in part motions for partial summary judgment against The Plaintiffs, who were direct and indirect purchasers of packaged tuna products, sought to hold StarKist liable for violating federal and state antitrust laws by colluding with its competitors to fix, raise, and maintain the prices of packaged tuna above competitive levels. The plaintiffs’ primary evidence was twofold: First, StarKist Company pled guilty in parallel criminal proceedings for participating in a price-fixing conspiracy with other packaged seafood producers. Secondly, several Korean witnesses testified (and certified translation of Korean documents suggested) that there was a clear “implicit understanding” that price coordination was occurring. Specifically, StarKist’s August 2014 Board of Directors meeting minutes (“Minutes”), which were originally written in Korean, were translated as stating that: “StarKist and Bumble Bee had an implicit understanding that they wouldn’t attack each other’s pouch and [white meat] segments.” This was presented as clear evidence of collusion.
StarKist’s General Denial
StarKist argued that its guilty plea in the criminal proceeding only covered a limited time period (November 2011 to December 2013), a limited product (5 oz. tuna cans), and a limited conduct (coordinating the timing of price announcements). It did not establish its liability for the entire scope and duration of the alleged conspiracy. StarKist also argued that the Korean evidence relied on by the plaintiffs was not admissible or reliable. Specifically, StarKist argues that the Korean documents and testimony were mistranslated or misinterpreted. Specifically, StarKist presented evidence that the phrase “implicit understanding” used by one of its executives was a mistranslation of a Korean term that means “common sense” or “general knowledge.” StarKist claimed that this mistranslation created a false impression of collusion among competitors.
But the Court Didn’t Buy StarKist’s Argument
The Court did not find StarKist’s objection to the Korean translation reasonable, because it was based entirely on one witness’ deposition testimony that the reference was “probably a translation error” and that he sees “problems” with “translation from English to Korean and back … from time to time.” The witness, however, did not explain the nature of the error, nor present any evidence of his knowledge of the Korean language.
The court also pointed out that the translation was done by a certified translator who followed professional standards and used dictionaries and other resources to ensure accuracy, and that it was consistent with other evidence showing that StarKist had an agreement with its competitors to fix prices, such as phone records, emails, price announcements, plea agreements, and testimony.
The translation was not challenged or corrected by either the Korean check interpreter who “repeatedly interjected corrections and clarifications during the deposition” or another witness who “is fluent in English and Korean” and who “corrected and clarified certain translation issues with the exhibits.” Neither of them disputed the translation of “implicit understanding” as suggesting collusion. Finally, the translation was not contradicted by StarKist’s own expert witness who provided an alternate interpretation on the meaning of the Korean term but did not dispute that it could also mean “implicit understanding” in some contexts.
Check Interpreter Costs Are (Sometimes) Recoverable by the Prevailing Party
In one case (Francis v. MSC Cruises), the prevailing Defendant sought $1,012.50 for the compensation of a Tagalog interpreter. Plaintiff argued that Defendant’s decision to hire such an interpreter was unreasonable because Plaintiff had already provided a Tagalog interpreter. Defendant asserted that the second Tagalog interpreter was necessary to ensure Plaintiff’s Tagalog interpreter was interpreting correctly. Also, Defendant noted that its own Tagalog interpreter had stopped a deposition to point out that Plaintiff’s deposition interpreter was incorrectly interpreting—showing the necessity of a second interpreter for ensuring accuracy of foreign language testimony. The Court agreed that Defendant was entitled to recover costs for an independent (check) interpreter. (Compare Ortho-McNeil Pharm. Inc. v Mylan Labs (determining that check interpreter costs “are not recoverable because, although these interpreters were helpful to counsel, they were in no way necessary for litigation”).
In a federal patent infringement case in the Eastern District of Texas (Plastronics Socket Partners, Ltd. v. Dong Weon Hwang), the magistrate judge denied Plastronics attempt to recover “$3,114.42 spent on a certified transcript, video, and check interpreter” in preparation for deposing an expert witness. In explaining its decision, the Court observed that “[t]here is no basis for recovery of such costs under Rule 26, which requires a party seeking discovery to “pay the expert a reasonable fee for time spent in responding to discovery.” Fed. R. Civ. P. 26(b)(4)(E)(i). The court determined that Rule 26 does not provide for the recovery of other costs associated with deposing an expert.
Check Interpreter Services for On-Site Depositions and for Remote Video Depositions
Check interpreters are professional court interpreters who monitor and, when needed, provide correction for oral testimony interpreted by the lead deposition or trial interpreter. They can help the counsel uncover crucial evidence of collusion, fraud, or other misconduct, or challenge the validity of such claims, as shown by the case of StarKist and its price-fixing scheme. Check interpreters are often experts in oral interpreting and may not always be qualified to resolve the issue of disputed written translations on the fly. Should there be a disagreement about certified translation of the foreign language documentary evidence, both parties may have to use the testimony of the original translators of the certified translations to defend the disputed translations as expert witnesses.
The use of check interpreters is not always explicitly regulated by the rules of evidence or civil procedure, and parties may have to seek court orders or stipulations to clarify the roles and responsibilities of such independent foreign language experts. In many cases, the costs of hiring check interpreters are recoverable by the prevailing party. But even if the party has to bear the cost, a check interpreter is likely going to be less expensive than a significant interpretation or translation error that could be fatal to the case.
Contract legal translation, deposition interpreting and expert witness service All Language Alliance, Inc. to retain a competent check deposition interpreter fluent in Korean; Tagalog; Amharic; Italian; Armenian; Tamil; Danish; Cantonese; Farsi; Hebrew; Japanese; Mandarin; Punjabi; Tigrinya; Zomi; Somali; Thai; Hebrew; Swahili; Lao; Kunama; Sinhala; Swahili; and other rare, exotic foreign languages, and common foreign languages.
Cases and Orders Discussed:
Francis v. MSC CRUISES, SA, No. 18-61463-CIV-BSS (S.D. Fla. Sept. 5, 2019)
IN RE PACKAGED SEAFOOD PRODUCTS ANTITRUST LITIGATION, No. 15-MD-2670 DMS (MDD) (S.D. Cal. Nov. 16, 2021).
IN RE TELESCOPES ANTITRUST LITIGATION, No. 5: 20-cv-03639-EJD (VKD) (N.D. Cal. May 11, 2021).
Ortho-Mcneil Pharm., Inc. v. Mylan Labs., Inc., 2008 U.S. Dist. LEXIS 112147, 2008 WL 7384877 (United States District Court for the Northern District of West Virginia August 18, 2008, Filed).
PLASTRONICS SOCKET PARTNERS v. DONG WEON HWANG, 611 F. Supp. 3d 326 (E.D. Tex. 2020).
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