How Much Notice Should be Provided for an Interpreted Deposition?
Rules Concerning Appropriate Notice for a Deposition with a Deposition Interpreter
We’re blogged about the parties’ responsibilities to bear the cost of a cancelled of rescheduled interpreted deposition. Another question that often comes up in the context of a deposition involving a deposition interpreter is: How much notice should be provided for an interpreted deposition, or for a deposition in general? It depends on the rules of the jurisdiction. According to the Federal Rules of Civil Procedure (FRCP) 30(b)(1), “[a] party who wants to depose a person by oral questions must give reasonable written notice to every other party.” Since there is no specific number of days required, what constitutes “reasonable” notice under federal rules depends on the circumstances of the matter at hand.
States have differing rules. Some states provide specific requirements in terms of the number of days. For example, New York’s Civil Practice Law and Rules (CPLR) Rule 3107 requires that “[a] party desiring to take the deposition of any person upon oral examination shall give to each party twenty days’ notice, unless the court orders otherwise.” California has specific rules depending on the method of service and other factors, e.g., ten days if notice is served by personal service. Other states, including Minnesota, follow the federal “reasonableness” standard.
Two Days’ Notice Insufficient under Federal Rules
In re Malyugin involved a Russian national that was served with a third-party subpoena while he was in Washington, DC attending a medical conference. Malyguyin had personal knowledge concerning certain facts in another case before the U.S. District Court for the Central District of California. Malyugin had signed a declaration about two years prior in the California case. The Defendants were discussing the possibility of a deposition with Malyugin and had communicated with him and the plaintiffs, however, Malyugin had not responded to those communications.
After learning that Malyugin would be in Washington, DC for a conference, defendants served Malyugin with a subpoena on April 15 for a deposition and requiring the production of documents on April 17. This would have provided Malyguyin with two days to comply. Malyugin moved to stay and quash the subpoena as well as for sanctions against the defendants in the U.S. District Court, District of Columbia.
The Court noted that FRCP 45(d)(3)(A) requires it to quash or modify a subpoena that, among other reasons: (1) fails to allow a reasonable time to comply or (2) requires a person who is neither a party nor a party’s officer to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person.
Email and Other Communications Were Not “Notice”
With respect to whether the defendants had provided Malyugin with reasonable notice to comply, the Court held that they had not. While the defendants had discussed a deposition with Malyugin as early as March 2018, those communications did not equate to service of a notice of deposition.
What Constitutes “Reasonable” Notice?
Additionally, the Court noted a District Court, District of Columbia decision where a witness was allowed to object to a subpoena served one or two days before a deposition. The Court also noted D.C. District Court Rule 30.1, which states that “[s]ervice of a deposition seven days in advance of the date set for taking the deposition shall constitute ‘reasonable notice’ to a party as required by Fed. R. Civ. P. 30(b).” Finally, the court noted a decision in the S.D.N.Y. that noted that “many courts have found fourteen dates from the date of service as presumptively reasonable.” Here, the Court found that notice was clearly unreasonable.
Deponent Living and Working in Russia
The Court then discussed the next issue, i.e., that Malyugin lives and works in Russia. It held that while the subpoena could be modified so that he would have a reasonable time to comply, it might then violate the limits on travel imposed by FRCP 45. The Court also did not allow modification of the subpoena to allow a deposition in Russia and document production by email. The Court left defendants with the option of serving Malyugin again in compliance with FRCP 45.
Finally, the Court declined to issue sanctions against defendants because it found that Malyugin was a person with knowledge of facts in the California action, and the subpoena was not unduly burdensome even though it did have other problems.
Four Days’ Notice Is Insufficient Notice in State Court Action
Sunlight Senior Living I LLC v. Sunlight Senior Living, Inc., et al. is a case that involved the sale of a senior-living facility in Minnesota that specialized in culturally appropriate care for Hmong residents. Buyer claimed that sellers and other individuals had colluded to take residents and staff from buyer following the sale. Buyer claimed breach of contract, tortious interference and misappropriation of confidential information. The matter came before the Court of Appeals of Minnesota.
In Sunlight, the Court of Appeals affirmed the lower court’s decision and found that sellers did not have a duty to inform affiliates of restrictive covenants in the sales agreement, defendant Bao Vang did not have constructive notice of provisions in the agreement and the resident list is not a trade secret.
Unreasonable Notice of Deposition
Interestingly, the case also involved unreasonable notice of a deposition. Four days before discovery closed, the buyer served a subpoena on Ker Vue, the owner of one of the defendant companies. The subpoena did not include a Hmong interpreter. Due to the late notice and failure to provide for a Hmong interpreter, the defendant company notified buyer that Ker Vue would not attend the deposition. The defendant company then moved to quash the subpoena.
On appeal, the buyer claimed that the lower court had abused its discretion when it did not explicitly rule on its motions for a continuance to subpoena Ker Vue.
The Court of Appeals held that the that the lower court had not abused its discretion. The Court of Appeals noted that buyer had only provided Ker Vue with four days’ notice for the deposition, and buyer had not arranged for a Hmong deposition interpreter. Additionally, the lower court was unconvinced that Ker Vue was an appropriate defendant.
Clearly, if one needs to serve notice of a deposition in a particular action requiring services of a deposition interpreter in a rare, exotic, or common foreign language, one needs to be aware of the specific requirements of the particular jurisdiction. Additionally, if a deponent with limited English proficiency (LEP) is involved, one must be sure to consider the use of a deposition interpreter at the deposition.
Get in touch with the expert witness, legal document translation and deposition interpreter service All Language Alliance, Inc. to request a deposition interpreter fluent in Russian; Hmong; Bengali; French; Sinhala; German; Korean; Mandarin; Somali; Hebrew; Danish; Hungarian; Amharic; Korean; Anuak; Kunama; Mongolian; Polish; other foreign languages.
Cases Discussed:
In re Malyugin, 310 F.Supp.3d 3 (D.D.C. 2018)
Sunlight Senior Living I LLC v. Sunlight Senior Living, Inc., et al. (Minn. App. 2022)
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