Deposition Interpreters for Video Depositions of Overseas Deponents

Taking Video Deposition Testimony of Deponents Located in Foreign Countries

Deposition interpreter services for video depositions via Zoom, also known as remote depositions, or remote video depositions, in the U.S. litigation involving deponents who are located in foreign countries and testify from non-US venues, contain benefits, such as cost, time savings, and increased accessibility of deponents and witnesses. However, international depositions and testimony have its challenges, especially when deposition interpreters are involved. The following court decisions demonstrate that courts continue to allow motions for video depositions and video testimony even in post-COVID times.

Korean Witnesses Allowed to Appear for Video Depositions

Hanwha Corp. v. Heartland Machine & Engineering, LLC, Slip Op. 1:22-cv-01475-JPH-MG (S.D. Ind. Jan. 11, 2024) involved a Korean company and its attempt to enforce a South Korean judgment against the American company Heartland before the District Court for the Southern District of Indiana.

Heartland issued deposition notices to a Hanwha company representative and two employees located in South Korea as it attempted to prevent enforcement of the foreign judgment. Hanwha moved the court to require Heartland to depose these individuals via video. The Magistrate Judge granted this request.

Heartland objected to the Magistrate Judge’s order under Federal Rule of Civil Procedure 72(a). FRCP 72(a) allows the court to review timely objections to magistrate orders and to modify or set them aside if there was clear error. The district court noted that the “clear error” standard is a very deferential standard.

The district court highlighted FRCP 30(b)(4), which allows courts to order that a deposition take place by telephone or other remote means. It noted that there is no standard that the district court must follow when evaluating a motion for a remote deposition. However, the rule should be evaluated keeping in mind that the FRCP should be “construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” Based on this, the court reasoned that in making a decision on whether to grant the requirement for the remote depositions, it must consider the reasons for the request as well as the claims of prejudice and hardship that the party opposing the request made.

Heartland argued that the order was clearly erroneous because in-person depositions are the norm in federal practice, Hanwha is the plaintiff in the case and that the prejudice it would suffer outweighs the reasons favoring remote depositions. Additionally, Heartland cautioned against creating a “de-facto rule favoring remote depositions.”

Heartland cited to various district court decisions in its papers, but the district court noted that the cited cases did not show that the order requiring remote depositions was clear error. Furthermore, the court noted that the judge had indeed evaluated the reasons for the remote depositions identified by Hanwha along with the potential prejudice identified by Heartland.

Heartland claimed various ways it would be prejudiced if the remote deposition order was upheld. First, the inability to judge witness credibility. Second, inability to ensure that the witness was not being coached during testimony as well as the accuracy of the English to Korean deposition interpretation. Third, the case was document-intensive creating the difficulty of document presentation. Finally, it cited the fact that Heartland faced liability in the millions of dollars.

The district court concluded that the weight of the authority indicated that allowing remote video depositions should be liberally granted. It reasoned that video depositions mitigate many of the prejudices that Heartland noted in its papers including the presentation of many documents. Additionally, other potential prejudices such as clear audio and the use of deposition interpreters have been mitigated as a result of technological advances in the area of video depositions. The district court emphasized that Hanwha had even agreed to video depositions and not depositions via telephone.

In the end, the district court did not find that Heartland could show that the Magistrate Judge had made a clear error and affirmed the order requiring the Korean individuals to appear at depositions via video.

French Witness Allowed to Testify Remotely from France

Rinaldi v. SCA La Goutte, D’Or, et al., 2022 WL 443779 (S.D.N.Y. 2022) involved a breach of contract claim against a French company before the District for the Southern District of New York. The French company requested that a witness be allowed to testify remotely from France. Rinaldi opposed the motion citing the importance of in-court testimony.

In its decision, the district court highlighted FRCP 43(a), which provides:

[a]t trial, the witnesses’ testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules [the FRCP], or other rules adopted by the Supreme Court provide otherwise. For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.

The district court noted that Second Circuit authority gives judges discretion to allow remote testimony by video for good cause in compelling circumstances and having the appropriate safeguards. While the district court also noted that live testimony is given great value in the American legal tradition, there are instances when a witness must testify remotely for unexpected reasons, such as an accident or an illness. Remote testimony should not be allowed simply because it is inconvenient for the witness to testify in court.

After reviewing the material submitted by the French company, the court determined that good cause and compelling reasons had been provided by the French company that would justify witness testimony via video. The court did not go into specifics as the materials were under seal. The district court held that there was no indication that the witness simply wanted to avoid testifying in person.

Additionally, the court found that there would be safeguards for the remote testimony and that modern technology allows for presentation of documents contemporaneously during video conferencing. The court requested that the parties discuss the exhibits that would be used during trial so as to limit any time wasted discussing such issues before the jury. The court also advised the parties to confer regarding safeguards for French deposition interpreters and suggested using the rules the parties had implemented during remote depositions as a starting point. Finally, the district court held that the parties could not identify any French law that would prevent the remote testimony. As such, the order allowing the witness to testify remotely from France was granted.

International Deposition Interpreter Services in Common and Exotic Foreign Languages for Remote Video Depositions

As remote interpreted international depositions and remote testimony continue to be allowed by the courts post-COVID under certain circumstances, get in touch with the legal translation service All Language Alliance, Inc. to reserve an experienced deposition interpreter fluent in Korean; French; Mandarin; Thai; Amharic; Hebrew; Tigrinya; Armenian; Tamil; Italian; German; Portuguese; Japanese; Polish; Spanish, and other common, exotic and rare foreign languages for remote depositions in international cases.

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