Attorney Sanctioned for Mistreatment of a Mandarin Deposition Interpreter
Federal Court in Southern District of New York Finds Attorney’s Mistreatment of Mandarin Deposition Interpreter Sanctionable as Discovery Delay
We’ve blogged about sanctions for misconduct at depositions involving foreign language deposition interpreters. This blog post discusses a trademark infringement case in the Southern District of New York in which a Mandarin deposition interpreter got up and walked out of a deposition after a brief exchange with the attorney defending the deposition of a Mandarin-speaking deponent, yet it was the attorney who the court sanctioned for delaying discovery, since depositions are part of the discovery process.
The Court Admonished the Mandarin-Speaking Defendant’s Attorney on the Importance of the Depositions
In Cielo Creations, Inc. v. Gao Da Trading Co. Ltd., No. Civ. A. 04 Civ.1952, 2004 WL 1460372 (S.D. N.Y. 2004) (“Cielo Creations”), the parties were litigating a trademark infringement claim that Cielo Creations raised against Gao Da Trading Co. Ltd. (“Gao Da”). During the litigation, the parties consented to an order of the court for expedited discovery. Gao Da repeatedly failed to comply with the court’s order. As a result, the court directed Gao Da to respond to all outstanding discovery requests and scheduled a conference with the parties. At the conference, the court again directed Gao Da to comply with discovery and to produce its principal, Jian-Feng Dai, for deposition. Mr. Dai spoke Mandarin Chinese, so his deposition testimony had to be interpreted from Mandarin into English.
During the discovery conference, the court specifically admonished the Mandarin-speaking Defendant’s counsel by stating:
I can’t impress upon you enough that some hard work has to go into this in terms of trying to respond to the Plaintiff’s requests. You are going to have to work with your client and try to help him find this information. That’s really his duty and your duty as his lawyer in response to the court’s order and, I believe it was, a consent judgment in this case . . . .
You [ ] have a bunch of questions that have been put to you [previously]. You can expect that those are the questions [Plaintiff is] going to want answers to. So I expect you to have your client prepared to respond at the deposition under oath. OK?
Cielo Creations, 2004 WL 1460372, at *1.
The Mandarin Deposition Defending Attorney Appeared at the Deposition Unprepared
Despite the court’s harsh directive to Defense counsel Wang, during the questioning of Mr. Dai at the scheduled deposition, Mr. Dai stated that he had not met with or spoke to his counsel, Mr. Wang, prior to seeing him as they entered the deposition, nor had he done anything to prepare for his deposition. During this exchange, Mr. Wang directed the witness seven times not to answer questions on the grounds of attorney-client privilege, “even though not one question requested information concerning the contents of an attorney-client communication.” Cielo Creations, 2004 WL 1460372, at *2. On several occasions, Mr. Wang interrupted pending questions to critique the Plaintiff’s question or to ask whether he himself could ask a question. Cielo Creations, 2004 WL 1460372, at *4, n.2.
The Mandarin Deposition Interpreter Left the Deposition
In addition, in his exchanges with the court-certified English-Mandarin deposition interpreter, Attorney Wang was inappropriately argumentative and interruptive. Despite Plaintiff’s counsel’s agreement that all objections to translation would be preserved for the record, Mr. Wang repeatedly raised speaking objections during the translation of witness testimony. At one point, Mr. Wang told Plaintiff’s counsel that “he should have hired someone whose first language was Mandarin, and went so far as to make derogatory remarks about Hong Kong after the Mandarin interpreter stated that she was raised there.” Cielo Creations, 2004 WL 1460372, at *4, n.2. At that point, the Mandarin interpreter refused to continue and left the deposition. As a result, Plaintiff’s counsel had to secure a second Mandarin deposition interpreter for a second day of deposition testimony.
The Court Imposed Sanctions
Cielo Creations motioned the court for sanctions against Mr. Wang for causing a second day of depositions as a result of his “lack of preparedness” and “aggressive interference in the questioning” during the first day of the deposition. The court found the attorney’s actions sanctionable and granted the motion pursuant to Fed. R. Civ. P. 37 and 28 U.S.C. § 1927.
(1) Sanctions under Federal Rule of Civil Procedure 37
Fed. R. Civ. P. 37 provides for sanctions, including attorney’s fees and costs, for certain discovery abuses, like failure to comply with a discovery order and failure to make available any persons who will be able to give “complete, knowledgeable and binding answers” at a noticed deposition. Cielo Creations, 2004 WL 1460372, at *2. Rule 37 sanctions have a punitive and a deterrent effect to convey the seriousness of a party’s noncompliance.
In this case, the defendant had a history of noncompliance with discovery requests despite clear and repeated notices to its attorney, Mr. Wang.
Despite the Court’s efforts to impress upon counsel the importance and necessity of preparing his client for the deposition, counsel did not meet with or prepare Mr. Dai prior to the deposition. Mr. Dai was unable to testify regarding certain topics listed in the 30(b)(6) notice and to produce the documents from some of the categories Plaintiff requested.
Cielo Creations, 2004 WL 1460372, at *3. The court determined that this conduct was sanctionable against the Defendant.
(2) Sanctions under 28 U.S.C. § 1927
In addition to Rule 37 sanctions for a party’s noncompliance with a discovery order, 28 U.S.C. § 1927 allows a court to impose sanctions against an attorney for certain discovery abuses, such as incurring excessive costs. Section 1927 provides as follows:
Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.
28 U.S.C. § 1927.
The Court Finds the Attorney’s Disrespectful Treatment of the Mandarin Deposition Interpreter Sanctionable for Causing Unnecessary Discovery Delay
In this case, the court found that Attorney Wang’s behavior warranted § 1927 sanctions for three reasons. First, Mr. Wang objected to several deposition questions and instructed his client not to answer them without any legal basis for doing so. The court reasoned that his objections were “so completely without merit as to require the conclusion that they must have been undertaken for some improper purpose such as delay.” Cielo Creations, 2004 WL 1460372, at *3 (quoting Salovaara v. Eckert, 222 F.3d 19, 35 (2d Cir.2000)).
Second, Attorney Wang did not prepare his client for the court-ordered deposition or produce any documents that were requested, thereby preventing Plaintiff from obtaining the discovery to which it was entitled. The court found such conduct to be sanctionable.
Third, Attorney Wang’s hostile and inappropriate remarks towards the Mandarin interpreter caused her to leave the deposition. This created a “truncated” deposition and unnecessary delay in the discovery process by forcing Cielo Creations to participate in a second day of depositions to obtain what it should have obtained the first day. Additionally, Attorney Wang claimed that the Mandarin deposition interpreter was not qualified to translate Mandarin and questioned her competency because “her first language was Cantonese.” Cielo Creations, 2004 WL 1460372, at *4. The Plaintiff claimed that the only reason the Mandarin interpreter had issues was because Attorney Wang was hostile to her and interruptive. The court held that even if the Chinese to English translation was not completely accurate, Mr. Wang’s behavior was completely improper and deserving of § 1927 sanctions.
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