Interpreting Depositions of Witnesses Abroad

Spanish Deposition Interpreting in Mexico in U.S. Litigation

Legal interpreting services for depositions of foreign parties located abroad for use in a U.S.-based litigation are sometimes allowed to take place via videoconference. In the case discussed below, a different federal court required the depositions to be taken in the plaintiffs’ home country of Mexico.

In Rodriguez v. Hermes Landscaping, the plaintiff filed a motion for a protective order regarding the location of the plaintiffs’ depositions. The first named plaintiff was citizen of Mexico who, over a period of 10 years, came to the United States as an H-2B worker to perform landscaping work in Kansas and would then return to Mexico after the work had been completed. Under the H-2B program, foreign nationals may come to the United States “temporarily…to perform…temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in this country.” 8 U.S.C. Section 1101(a)(15)(H)(ii)(b).

The plaintiff filed a putative class action lawsuit in federal court alleging violations of the Fair Labor Standards Act, Kansas law, and Missouri law. The plaintiff also claimed that the defendant breached its contracts with the H-2B workers. After the filing of the complaint, two other individuals, who were also employed by the defendant under the H-2B worker program, were added as named plaintiffs. As part of the discovery process, the defendants had the opportunity to depose plaintiffs, and the defendants desired to do so in the United States. The plaintiffs subsequently filed their motion for a protective order on the grounds that immigration restrictions made it difficult for the plaintiffs to travel to the United States for depositions. The plaintiffs also claimed that they were unable to afford the cost of traveling to the United States for depositions. Consequently, the plaintiffs proposed that defense counsel travel to Mexico City to take the plaintiffs’ depositions.

The defendants objected to the plaintiffs’ motion for a protective order on several grounds. First, the defendants contended that it would place an unfair financial burden on them for the depositions to be taken in Mexico. Second, the defendants opposed the plaintiffs’ request to have the depositions proceed via video-conference. The defendants argued that, given the anticipated length of the depositions, the number of deposition exhibits, and the plaintiffs’ need for a Spanish deposition interpreter, that it was more suitable for the depositions to proceed in person in the United States.

Federal Court Orders Plaintiffs’ Depositions to be Taken in Mexico; Finds Video Depositions to be “Less Than Ideal.”

The court granted the plaintiffs’ motion for a protective order in part. The court agreed that the plaintiffs should not have to travel to the United States for their depositions. However, the court found that taking the plaintiffs’ deposition via videoconference was “less than ideal.” Thus, the court ruled that the plaintiffs’ depositions should be taken in Mexico in one location provided that the plaintiffs paid defense counsel’s reasonable travel expenses.

Court Orders Parties to Confer on the Cost of Spanish Deposition Translators/ Interpreters

The court fashioned its order on travel expenses in this way as the court did not think it fair to totally shift the travel costs to the defendants entirely. If, however, the plaintiffs refused to pay the defendants’ costs associated with traveling to Mexico for the depositions, the court ruled that the plaintiffs’ motion for a protective order would be denied, thereby requiring the plaintiffs to come to the United States for their depositions. The court also ordered the parties to confer on other related expenses, such as the cost of a Spanish deposition translator/interpreter and a court reporter.

Although case law holds that, as a general rule, “a plaintiff must make himself available for examination in the district in which he brought suit,” (see Clayton v. Velociti, Inc., 2009 WL 1033738 (D. Kan. April 17, 2009)), there are exceptions to this rule. If, for example, a plaintiff can show good cause as to why he should not be required to come to the district in which the lawsuit is pending, the rule is not followed. (See Clayton v. Velociti.)

Cases Requiring Foreign Parties to Travel to the U.S. to be Deposed through a Deposition Interpreter

In some cases, courts have required foreign parties to travel to the United States to be deposed. For example, in Almonacid v. Cessna Aircraft Co., 2012 WL 1059681 (D. Kan. March 28, 2012), a case the court mentioned in Rodriguez, the court required 9 plaintiffs, who lived in Chile, to travel to the United States for their depositions. In rejecting the proposal to take their depositions via videoconference, the magistrate judge in Almonacid held that he was doubtful that such critical depositions could be “effectively and efficiently taken by video conference in light of the probable length of the depositions, the need for exhibits, and the burden of deposing the plaintiffs through a translator. “ Id. The magistrate judge in Almonacid went on to state that “although the quality of videoconferencing continues to improve, the plaintiffs…presented no specific evidence concerning available technology to alleviate those doubts” and held that the proposal of having the depositions taken in Chile was an unjustified proposal to shift travel costs to the defendants.

The court in Rodriguez, however, held that Almonacid was distinguishable because Almonacid was not a class action, did not have to be filed in the United States as the Rodriguez case did, and did not have the same immigration concerns that were present in Rodriguez. Thus, the court in Rodriguez found that shifting travel costs to the plaintiffs and ordering the depositions to be take in Mexico was a reasonable solution.

The case is Rodriguez v. Hermes Landscaping, Inc. Case No. 1702142-CM-KGG, decided on October 17, 2017 in the United States District Court for the District of Kansas.

All Language Alliance, Inc. provides experienced legal deposition interpreters in Spanish, French, German, Mandarin Chinese, Japanese, Korean, Russian, Thai, Dari, Tagalog, and other languages for foreign depositions taken in non-US venues and foreign jurisdictions, anywhere in the world.

**This legal translation blog article should not be construed as legal advice. You should always consult an attorney regarding your specific legal needs.

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