Expert Deposition Transcript Translation Catches Inevitable Deposition Interpretation Errors
As we’ve blogged about before, deposing a non-native English speaker is a an artform. Injecting a deposition interpreter into the already complicated interplay between deposing attorney, deponent, and opposing counsel makes it even more difficult for the court reporter to capture a verbatim transcript of the deponent’s testimony. We shouldn’t be surprised, then, that such transcripts often contain translation errors.
Several cases demonstrate that the best way to catch such errors—and avoid their case-damaging consequences—is to hire a qualified legal translator to translate the transcript into the deponent’s native language as soon as possible after the deposition. The deponent can then review the translation for accuracy and their attorney can file an errata sheet to correct the errors before the transcript is relied upon in the case.
Rule 30(e) Permits Changes, But How Far?
Federal Rule of Civil Procedure 30(e) permits a deponent to review the transcript of their deposition and “if there are changes in form or substance, to sign a statement listing the changes and reasons for making them.” As we’ve noted before, federal courts are divided over how substantive such changes may be. Some courts permit deponents to change the substance of their answers—changing a “yes” answer to “no,” for example—while others limit changes to explicit errors and clarifications of answers.
As the following case makes clear, however, even courts that take a narrow or restrictive view of the changes permissible under Rule 30(e) agree that correcting translation errors is an appropriate purpose for an errata sheet.
Court Lets Native Spanish Speaker Amend Testimony to Clarify Interpretation Errors
In the 2020 case of Cerda v. Cillessen & Sons, Jose Diaz Cerda, a native Spanish speaker, sued his former employer for violations of the Family and Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA). Following his deposition, which involved an interpreter, Cerda filed an errata sheet under Rule 30(e) purporting to make 30 changes to the transcript of his deposition testimony, 19 of which were based on “clarification of interpretation.”
Acknowledging that that U.S. Court of Appeals for the Tenth Circuit takes a restrictive view of Rule 30(e) changes, the U.S. District Court for the District of Kansas permitted Cerda to make 17 of the 19 changes based on interpretation errors. The court’s parsing of Cerda’s requested changes provides valuable insights for attorneys seeking to secure an accurate transcript of their non-native English deponent’s testimony.
Changes Allowed When Attorney Objected During Deposition
The court first allowed eight changes based on interpretation errors because Cerda’s attorney, a Spanish speaker, objected to the mistranslation during the deposition itself. This was fair, the court reasoned, because the contemporaneous objection permitted the deposing attorney to follow up with specific questions about the translation. In one instance, for example, Cerda’s attorney objected that the word “authorized” should have been translated as “responsible.” The deposing attorney then asked Cerda to discuss his understanding of the differences between the two.
Changes Allowed When They Do Not Alter Substance of Testimony
The court next allowed nine changes based on interpretation errors that did not substantively alter Cerda’s testimony. The court cited the example of Cerda changing the word “leader” to “lead” in clarifying his job title of “traffic control superintendent.”
On the other hand, the court rejected two changes because they did change the substance of Cerda’s testimony. For example, Cerda attempted to change his answer about whether his crewmembers came to him with grievances from “not all of the time” to “not any of the time.” The court reasoned that this was a substantive change in Cerda’s testimony that was more likely motivated by legal strategy than a translation error.
Cerda indicates that even courts that follow a restrictive approach to Rule 30(e) changes are likely to permit corrections when (1) the defending attorney objects to the mistranslation during the deposition itself or (2) the correction clarifies an existing answer instead of changing its substance. These lessons are validated by other cases dealing with similar language issues in deposition transcripts.
When and How Corrections Are Requested Matters
Other cases indicate that courts care when and how deposition corrections based on interpretation errors. In the 2016 case of Sudre v. Port of Seattle, for instance, the court permitted Rule 30(e) changes to correct translation errors. The Sudre court also noted that the corrections were requested just a few weeks after the deposition, thereby reducing the likelihood that the changes were part of a legal strategy instead of a genuine attempt to correct the record.
The court in Liang v. AWG Remarketing, a 2015 case, reached the opposite conclusion and declined to strike the deposition of the Mandarin-speaking plaintiff. Although the plaintiff hired an expert Chinese to English translator who found that the deposition interpreter “omitted certain words and phrases, used poor grammar that made plaintiff appear evasive, translated slowly in a way that confused plaintiff, and used the wrong tense of certain words,” the plaintiff did not move to strike her deposition testimony until defendants cited it in their summary judgment motion.
Hire an Expert Translator As Soon As Possible After a Deposition Ends
Cerda and other cases like it make clear that the safest strategy is to hire a legal translator to translate the transcript of the testimony of your non-English speaking deponent, let the deponent review the transcript, and request necessary changes under Rule 30(e) as soon as possible. Our legal translators and certified court interpreters are available to translate in writing and to provide sight translation of deposition transcripts to Simplified Chinese, Romanian, Oromo, Spanish, Russian, Mongolian, Krahn, Portuguese, Amharic, Korean, Polish, Wolof, Norwegian, Croatian, and other foreign languages.
Cerda v. Cillessen & Sons, Inc., Case No. 19-1111-JWB, was decided August 5, 2020, in the U.S. District Court for the District of Kansas.
Sudre v. Port of Seattle, Case No. C15-0928JLR, was decided December 2, 2016, in the U.S. District Court for the Western District of Washington.
Liang v. AWG Remarketing, Case No. 2:14-cv-0009, was decided July 24, 2015, in the U.S District Court for the Southern District of Ohio.
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