Affidavit Submitted Without a Certified Translation Leads to Case Dismissal

Affidavits Must Be Certified by Qualified Translator to Be Evidence

Certified and notarized translators’ affidavits can make or break a case, especially at the summary judgment stage.  We’ve blogged before about the consequences for attorneys who fail to provide their clients with translations of their affidavits in the clients’ native language before filing the affidavits in court. It’s not enough simply to ensure that clients understand their affidavits in their own language, however. For the court to consider the affidavits as evidence, attorneys must make sure that the Translator’s Affidavit contains a statement detailing the translator’s qualifications and certifying that the translations are accurate. As the case below illustrates, failing to secure certified translations of affidavits can cause attorneys to lose cases at the summary judgment stage.

Summary Judgment Motion Leads to Statute of Limitations Battle

In Ting You v. Grand China Buffet & Grill, Inc., a Chinese man sued his employers, the former owners of a restaurant, for unlawful employment practices under the Fair Labor Standards Act (FLSA) and West Virginia state law. Specifically, the plaintiff alleged that he worked more than seventy hours per week for defendants for nearly two years, during which they paid him no wages other than tips. Following a contentious year of discovery, defendants moved for summary judgment on the issue of whether the plaintiff’s claims were barred by the statute of limitations, which is two years for FLSA claims.

In their summary judgment motion, defendants argued that they had sold the restaurant to another company seven months before the earliest date that fell within the statute of limitations. Thus, because they did not own or manage the restaurant at any point within the statute of limitations, defendants contended that plaintiff could not hold them liable for failing to pay him appropriate wages.

Plaintiff countered that regardless of when defendants sold the restaurant, defendants continued to manage and profit from the restaurant throughout the period covered by the statute of limitations. But the only evidence plaintiff offered in support of this contention was his own affidavit. This is where his problems began.

Affidavit Translators Must Be Qualified and Their Translations Certified as Accurate

Federal Rule of Civil Procedure 56(c) explicitly permits judges to consider affidavits as evidence at the summary judgment stage. If the affidavit is a translation from the affiant’s native language, however, the affidavit must include certifications that the translator is qualified and that the translation is accurate. If a translated affidavit does not include these certifications, the court will exclude it and refuse to consider it in evaluating the summary judgment motion.

Courts base this requirement on Federal Rule of Evidence 604, which requires that translators “must be qualified and must give an oath or affirmation to make a true translation.” They also cite to the general authentication requirements of Federal Rule of Evidence 901. The required certifications are often justified by the fact that affidavits are generally ex parte, meaning that the opposing party does not get the chance to check the qualifications of the translator or the translation. In a deposition, by contrast, opposing counsel (and sometimes their own “check interpreters”) can observe the interpretation as its happening.

Court Grants Summary Judgment Motion Over Uncertified Affidavit Translation

In Ting You, the court noted that although the plaintiff’s affidavit was in English, his native language was Mandarin and he spoke extremely limited English. The plaintiff claimed that someone had translated the affidavit from English into Chinese for him before he signed it. But the court rejected this assertion as “inadequate in that it does not describe the maker’s qualification or expertise regarding language translation, does not state whether the maker did the translations, and does not explain the circumstances under which [plaintiff] signed the affidavit.” Furthermore, the court noted that the plaintiff’s attorneys had not provided the court or defendants with a copy of the translation to permit an evaluation of its accuracy.

Because it did not contain the proper certifications, the court refused to consider plaintiff’s affidavit as evidence. Without any other evidence to counter the defendants’ statute of limitations argument, the court granted defendants’ summary judgment motion and dismissed the plaintiff’s case as time barred. The plaintiff’s attorney’s failure to obtain certified, accurate translation services to translate the plaintiff’s affidavit cost him his case.

Relying on In-House Translations Is Especially Risky

Ting You demonstrates the importance of hiring certified, experienced translators to handle legal documents such as affidavits. Attorneys should be especially cautious about relying on translations made by their own employees. The court in Miranda v. Sweet Dixie Melon Company also considered a translated affidavit-like statement that did not include the required certifications. Like the court in Ting You, the Miranda court declined to consider the uncertified affidavit as evidence by the plaintiff to defeat defendants’ summary judgment motion. One of the main factors that the court cited in reaching its decision was the fact that the translator of the affidavit was a permanent employee of the attorneys of the party who offered it as evidence, thereby creating the risk that the translator skewed the translation to benefit the party in some way.

The Miranda court did not dismiss the plaintiff’s case outright, however. Instead, it permitted plaintiff to reopen the deposition of the affiant to solicit testimony solely about the matters discussed in the uncertified affidavit. Still, failing to certify the translation of the affidavit properly cost the plaintiff significant additional time and money.

The best practice is for attorneys to hire certified, independent, competent translators to handle translation of legal documents such as affidavits. All Language Alliance, Inc. provides certified translations of affidavits and other legal documents from and into Simplified Chinese, Korean, Traditional Chinese, Amharic, Hebrew, Russian, French, and other foreign languages. We also provide in-person on-site deposition interpreters in Mandarin, Mongolian, Cantonese, Somali, Russian, Oromo, Punjabi, Italian, Spanish, Farsi, and other foreign languages, online deposition interpreters for remote video depositions via Zoom in exotic and common foreign languages, and deposition prep interpreters in any foreign language.

The cases are Ting You v. Grand China Buffet & Grill, No. 1:17-CV-42, decided March 18, 2019, in the Northern District of West Virginia, and Miranda v. Sweet Dixie Melon Company, No. 7:06-cv-92, decided May 13, 2009, in the Middle District of Georgia.

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