Multiple Last-Minute Interpreted Deposition Cancellations Can Be Expensive
The prevailing party in a lawsuit is often entitled to recover the costs of an on-site deposition interpreter services; Zoom deposition interpreting services; and check deposition interpreter services from the other party. Today we look at which party must pay for the cost of deposition interpreter cancellation/ rescheduling fees.
In a case called Meghrikyan v. Escobar involving an automobile accident, the parties agreed to conduct the Russian-interpreted depositions of both Plaintiffs remotely on August 17, 2020. After the first deposition took place, they rescheduled the second one for October 16, 2020. Plaintiffs’ counsel did not object to the deposition but canceled less than 24 hours beforehand, causing defendants to incur a Russian deposition interpreter cancellation fee of $1,000.00. Defendants set a new deposition date for November 12, 2020; Plaintiff again canceled less than 24 hours beforehand. Again, Defendants were assessed $1,000.00 for the Russian interpreter.
Defendants’ counsel wanted to move forward with the deposition but before doing so, asked Plaintiffs’ counsel to pay the Russian deposition interpreter cancellation fees incurred previously. Plaintiffs’ counsel refused, and claimed that his client’s last-minute cancellations were foreseeable, due to the COVID-19 pandemic.
Defendants Christian Escobar and Melissa Escobar filed a motion to compel the deposition of Plaintiff Zinaida Meghrikyan. Defendants also requested $2,000 in monetary sanctions for the costs of the canceled Russian deposition interpreters. Their sanctions motion was based in part on the California Code of Civil Procedure section 2023.010, which delineates misuses of the discovery process including “Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.”
The court granted the motion, ordering Plaintiff Zinaida to appear for a remote deposition by September 15, 2021 and Plaintiffs and their counsel to pay Defendants $2,000 by the same date. Key to the court’s decision was the observation that “Plaintiffs’ counsel has not explained why, knowing that Defendants had to order an interpreter for his clients’ depositions, he did not have the courtesy to cancel the depositions in a timely manner.”
Absence of Justification Can Hurt the Party Seeking Reimbursement for Interpreter Cancellation/ Rescheduling Fees
A lack of justification can hurt the party seeking reimbursement as well. In an automobile warranty case called Osorio v. Kia Motors, which was brought under California’s Song-Beverly Consumer Warranty Act, the Plaintiff submitted a motion requesting attorney fees and costs, as they were entitled to do so as the prevailing party in litigation. Although the Plaintiff’s request was granted in part (awarding $125,100 in attorney fees), the court disallowed the requested cost reimbursement for interpreter cancellation fees.
The case was settled prior to trial, and the court observed that Plaintiff could have cancelled the interpreter services earlier and avoided the fee entirely. The court explained “It was clear that the trial was not going forward on the dates for which interpreter cancellation fees were incurred and the fees were entirely avoidable.”
“Substantial Justification” Can Reduce a Party’s Liability for Deposition Interpreter Cancellation Fees
In an employment discrimination case called Sabharwal v. Blue Diamond Growers, the parties scheduled the Plaintiff’s two-day virtual deposition for January 19 and 20, 2021. Upon receiving the deposition notice, Plaintiff requested a Punjabi deposition interpreter, and Defendant hired one. The day before the deposition was to begin, Plaintiff’s counsel notified Defendant that Plaintiff would not be able to appear for his noticed deposition because counsel’s wife became suddenly ill, and he was the only one able to care for her.
As a result, Defendant incurred substantial late cancellation fees from the Punjabi interpreting service it had retained—despite not using the Punjabi deposition interpreter. Defendant was informed that the full amount for the Punjabi interpreter services would still be charged ($4,550.00) because the cancellation was made less than 48 hours before the deposition was to begin. The attorney for Defendant was able to negotiate the fee down to $3,550.00.
In contrast to the decision in Meghrikyan, where the entire cancellation fee was imposed on the party rescheduling the deposition, in this instance the court imposed ½ of the cancellation fee on Plaintiff’s counsel. In making this determination, the court relied on two observations. First, Plaintiff’s counsel was “substantially justified” in the last-minute cancellation, and second, that Defendant had not provided advanced notice to Plaintiff of the Punjabi deposition interpreter’s 48-hour cancellation policy.
Sometimes Cancellation is Necessary, but Lying to Opposing Counsel May Result in Additional Sanctions
In an employment class action case called Xing v. Mayflower International Hotel Group, a Plaintiff’s deposition was set for February 23, 2021, and required a Mandarin deposition interpreter. Three weeks before the deposition, Plaintiff’s counsel emailed Defendant that they were going to withdraw as counsel. But they did not actually do so.
The day before the scheduled deposition, Plaintiff’s counsel emailed the following: “[o]ur office just learned from our client that she cannot attend tomorrow’s deposition due to a family emergency. Therefore, we have to cancel the deposition scheduled for tomorrow.” Defendants incurred a $2,075 cancellation fee for the cost of the Mandarin deposition interpreter.
Despite several requests from Defendants’ counsel regarding reimbursement for the Mandarin Chinese deposition interpreter’s cancellation fee, Plaintiff refused to pay it. Defendant filed a motion under Federal Rule of Civil Procedure 37, pursuant to which a court can award sanctions for failing to appear at a deposition, including not providing “sufficient notice of cancellation,” Root Bros. Farms v. Mak, 2007 U.S. Dist. LEXIS 71260, 2007 WL 2789481, at *7 (S.D.N.Y. Sept. 25, 2007).
In reviewing the evidence, the court determined that Plaintiffs’ Counsel (i) knew at least three days—not one day—before the deposition that Mandarin-speaking Plaintiff would not attend the deposition, (ii) misled defense counsel as to the reason for the deposition’s cancellation and its rescheduling, and (iii) attempted to mislead the Court as to the events leading up to the cancellation of the deposition.
Because of this egregious conduct, the court disregarded Plaintiff’s counsel’s argument that they should not have to reimburse the Mandarin deposition interpreter fee because Defendants did not tell them that the Mandarin interpreter had to be cancelled six days before the deposition in order to avoid the cancellation fee. The court described Plaintiffs’ Counsel’s actions as being “completely irresponsibl[e] and unreasonabl[e]” because they waited “until . . . less than 24 hours before the deposition to cancel, at which time Plaintiffs’ Counsel had to know that some cancellation fee for the interpreter would be incurred by Defendants.”
Sanctions of $4,008.75 ($2,075 for the Mandarin interpreter’s cancellation fee and $1,933.75 in attorney’s fees) were assessed against Plaintiffs’ Counsel, not against Plaintiff herself. See Mikhlyn v. Bove, 2011 U.S. Dist. LEXIS 110956, 2011 WL 4529613, at *4 (E.D.N.Y. Sept. 28, 2011) (“Under certain circumstances where the sanctionable conduct can be said to be solely attributable to an attorney, a district court may in its discretion impose sanctions only against the counsel.”).
Cancelling/ Rescheduling an Interpreted Deposition Can Cost You
Today’s post discussed the legal implications of deposition interpreter cancellation/ rescheduling fees in a few different cases. We showed how the courts may impose sanctions on the party or counsel who caused the cancellation without sufficient justification or notice. We also highlighted the importance of being honest and reasonable when dealing with opposing counsel and the court.
The main lessons learned from the cases are:
• Be courteous and timely when cancelling a deposition that requires a deposition interpreter.
• Provide advance notice of the deposition interpreter’s cancellation policy to the other party.
• Do not lie or mislead about the reason for the cancellation or the rescheduling.
• Be prepared to pay the full deposition interpreter cancellation fee if you act irresponsibly or unreasonably.
Meghrikyan v. Escobar, 2021 Cal. Super. LEXIS 115447 (Los Angeles Superior Court, August 23, 2021).
Osorio v. Kia Motors, 2023 Cal. Super. LEXIS 9931 (Los Angeles Superior Court, February 14, 2023).
Sabharwal v. Blue Diamond Growers, 2021 Cal. Super. LEXIS 79497 (Sacramento Superior Court, April 29, 2021).
Xing v. Mayflower International Hotel Group Inc, 2022 U.S. Dist. LEXIS 180028 (E.D. New York September 30, 2022).
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