Court Reporting Firms and Law Firms: Stop Treating Deposition Interpreters as if you Owned Them

A recent incident involving interpreting services for depositions has prompted me to expose what has for some time been a very distasteful deception that has been practiced by court reporting agencies and law firms in the US.

order_coverThe problem was discovered via a court order filed in a US federal district court.  The case caption is TESSERA, INC., plaintiff v. TOSHIBA CORPORATION, defendant (case number 5:15-cv-02543-BLF), a case being heard in the Federal District Court, Northern District of California.

From the publicly available court documents, depositions were originally scheduled to be held from May 9th to May 20, and subsequently the schedule was changed to the period from May 16 to May 23.

A court order commissioning the depositions (Document 81; the clickable cover page of which you see here) was signed by the judge hearing the case on February 16th. From the court order, it is clear that some misrepresentations have been made regarding interpreters who might be attending for the plaintiff, Tessera, Inc.

The court order lists eight (8) interpreters who “may participate” in the deposition on behalf of Tessera, Inc. At least seven of the eight interpreters are not employees of either Tessera’s counsel (Irell & Manella) or the court reporting agency involving in this case. We have learned that the court reporting agency involved in providing services in this case and disclosing names of interpreters to Tessera is DTI.

More importantly, since there are very few Japanese/English deposition interpreters and they generally know each other, it did not take much effort to determine that, of the eight interpreters:

  • At least five had not even been contacted by Tessera, Irell & Manella, or the court reporting agency for the subject case, and
  • six or seven (including the above-note five) interpreters did not know that their names were listed on the court order on the Tessera side.

The often-heard excuse for placing interpreter names on court orders when in fact they have not (and often will not) been retained is that they need to be on the court order. This is incorrect in many cases, and we have done numerous cases, even recently, where we interpreted without being on the court order, simply because we are resident in Japan and do not need a deposition visa. This applies to at least five interpreters of the eight listed.

No interpreter name was listed in the deposition order for the Toshiba side.

The significance of listing interpreters who haven’t even been contacted on a court order without their prior consent is very serious.

False representation of a commercial relationship.  Firstly, such listing implies that they have some commercial relationship with or are under the control of Tessera or Tessera’s counsel for this case. This is simply false. Whereas a law firm can place the names of numerous attorneys who are working directly for the law firm who might attend a deposition, because they are working on a particular case, this is clearly improper when it is done with outside contractors such as the interpreters who have not even been contacted about the case.

The situation for interpreters. It is particularly serious for interpreters because, unlike court reporters and videographers, who would only be working for the side taking depositions, interpreters should be free to work for the side being deposed, and in fact do just that in almost every deposition involving a Japanese entity in Japan.

To the best of our knowledge, with the possible exception of one of the eight interpreters listed, none of these interpreters is an employee of, or has any commercial relationship with Tessera, Tessera’s counsel, or the court reporting agency.

Restraint of free trade. Having been the victim of an unauthorized preemptive listing in a public court document as a potential attendee for one party in litigation, it becomes difficult for an interpreter to approach the other side (Toshiba) or their counsel with an offer of similar services, in spite of the fact that it is almost certain that all but one of the interpreters listed will not be retained by Tessera, Tessera’s counsel, or the court reporting agency. I cannot imagine any interpreter would be happy to volunteer the use of his or her name with no compensation for the benefit of an entity who will not be retaining them.

Conversely, although law firms representing Japanese entities regularly contact interpreters directly without going through brokers such as court reporting companies, you can understand why a law firm might not contact an interpreter who has already been listed a possibly attending for the other side. For this reason as well, it is definitely not in the interest of an interpreter to allow use of his/her name in this manner, since it risks being ruled out for retention by the other side in the case.

Misrepresentation of the capabilities of the court reporting agency. In three decades of deposition interpreting in Japan, we have never encountered a court reporting agency that had any relationship with a Japanese/English interpreter other than on a one-time basis as an outside contractor for a specific case.  Court reporting agencies simply do not have such interpreters as employees. Further, and more serious for interpreters contracted by such court reporting agencies, it appears that almost none of them know anything about Japanese/English interpreting or how the business of providing such services operates. Essentially, court reporting agencies are purporting to broker the services of people working in fields about which they are clueless. They would do better to stick to court reporting.

I suspect that such brokers will continue this practice of unauthorized (and in many cases unnecessary) preemptive listing of independent subcontractor names in court orders.

Even in the cases in which there is a need to list an interpreter name, the way to do that is get permission to use the interpreter’s name, which includes disclosing to the interpreter the case caption. And I can well imagine that some interpreters would make a commitment to retain them a condition for being named on the order.

In the meanwhile, we are proceeding with arrangements for a dinner party here, which “may be” joined by George Clooney, Barak Obama, Taylor Swift, or Bernie Sanders.

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USPTO Head Talks About Abusive (Troll) Patent Litigation

Bloomberg featured an interview with Michelle Lee, the head of the USPTO, in which she discussed doing something about what she calls abusive litigation.  She veers away from the commonly used “troll” to describe the entities that usually initiate such legislation.  Unfortunately, the video that Bloomberg made available has migrated somewhere, demonstrating again the ephemeral nature of information on the Internet.

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Translation Agency Erklaren Leaked Classified Nuclear Document: Why Care is Required to Protect Your Sensitive Documents

A security breach at a Tokyo translation company was recently reported in the Japan Times.  Japan’s Nuclear Regulatory Authority reports that Erklaren, a translation agency in Tokyo, sent a classified document to be translated for the NRA to an outside translator without password protection.  The document contained information regarding spent nuclear fuel reprocessing, regulations on reprocessing, and details about nuclear power plants.

Translation consumers should be aware that there are translation agencies that surprisingly often send sensitive documents to outside translators and other translation agencies without an NDA in place with the outside entity and without password protecting the file.  This is a clear reason why you need to know whether you can trust the people selling you translation, as well as know who is selling you translations and know who is actually doing your translations.

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Hot and Cold Running Interpreters? Not Likely.

Recent weeks have seen a moderate stream of sudden requests for interpreting services at extremely short notice.  These inquiries seem to have some common characteristics.

  • Originated by people who, from the content of their inquiry, appear to never have used an interpreter’s service before.
  • Originated by people or entities who do not identify themselves properly (i.e., physical location, proper company name).
  • Originated from free e-mail accounts such as gmail, Yahoo, or hotmail.

Uniformed people looking for interpreting (and also translating) services need to understand the things that will make it difficult for them to secure those services.  All three of the above (in addition to almost no prior notice) qualify as red lights in going forward with discussing interpreting assignments.

Additionally, it is important to remember that it is less likely to find a good interpreter (or translator) on very short notice.  There are exceptions.  We make them regularly for our regular clients.  But unreasonable requests from suspicious entities are reasonably treated as being suspicious and mostly do not result in us accepting offered assignments.

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The Mostly Incredible (in the True Sense of the Word) Japanese-to-English Translation Brokering Industry

Surprises Abound.  For translation consumers commissioning Japanese-to-English translation, it is usually difficult or impossible to evaluate the capabilities and business ethics of companies purporting to execute translations for you and easy to believe what they put out as their sales pitch.  “Purporting” is clearly appropriate here because of a very basic reality in the translation industry: only a tiny portion of the Japanese-to-English translations purchased by translation consumers are sold by entities having any significant Japanese-to-English translation capability themselves.  The way the industry works might provide some eye-openers for people in need of translation.

Bulk Translation Brokers Rarely Have any Translators to Speak Of.  The typical business model of bulk translation brokers (such as the ones that contact you and your paralegals daily) is that of outsourcing almost all work.  This includes not only translation, but also quality control, in the form of commissioning yet more outsiders to rescue bad translations done at extremely low rates by bad translators, these damage control people being themselves paid extremely low rates.  The next time you hear a salesperson or see an ad for a translation seller claiming to have “thousands of translators worldwide,” remember that this almost always means no more than that they know the email addresses of that many translators.

Unknown Translators in Unspeakable Venues.  In recent years, the major players in the bulk translation brokering industry have gone offshore to venues with cheap labor to purchase many of the Japanese-to-English translations they sell to unsuspecting clients in more advanced economies. The client is allowed to believe that the translation seller has done the translation and certainly would be shocked to discover where the client’s sensitive documents were sent to be translated.  When a job or even a request for quote is received by such brokers, many initiate a frantic search on the Internet for a source of translation service, not caring much who does the job, as long as it is cheap and fast.  These days, that search will often take them to China or India for Japanese-to-English translation.  Unless the only goal is a cheap price, condoning this strategy by placing orders with such brokers makes little sense for the consumer, considering that very few translators in either venue are likely to have the language expertise in both English and Japanese of translators from either Japan or an advanced English-speaking venue.  And it is not just language and translation expertise that is lacking; the very identity of the translator is often unknown and unknowable.   Because bulk translation brokers often purchase translation from other brokers in cheap-labor venues, the brokers getting your orders often do not themselves know who is translating your documents.  Again, note that these are the big translation sellers that contact you often for work.  And if you need to get a translation certified, you are very likely to get a meaningless letter from an office worker at the translation broker who is not only not a translator, but more than likely knows no Japanese and could in know way attest to the quality of the translation they have sold you, beyond relying on an act of faith.  This is not an imaginary phenomenon.  We have seen horribly translated documents that had attached to them such meaningless certifications of accuracy.  And some of them named translators who were not involved in the translation, something we were able to learn by contacting the translators whose names were misused in this manner.

The Solution?  There is no quick and easy way to find a good translation provider with their own translation and quality control capability.  The answer is clearly not to simply scour the Internet, which is populated generally by brokers that decorate their sites with stock photos of imaginary employees and employ the mantra of having thousands of translators whom they could never hope to have.  To do that would simply be imitating the translation procurement strategy of the brokers you should be avoiding.  One strategy an informed translation consumer might employ is to have a native Japanese speaker simply telephone the translation seller and ask to speak to someone in Japanese.  This will cause a great deal of consternation at most translation sellers, for reasons that you can easily imagine.  There are a number of things to look for in a Japanese-to-English translation provider, which will be the subject of another post coming shortly.

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The Growing Lack of Respect for Copyright Material

In an article title “Sony Pictures cautions press over hacking leaks” (December 15, 2014), BBC reported on the problems Sony has had with the hacking of its website, including the publication of private e-mails between celebrities.  Subsequently North Korea was accused of, and sanctioned for, the hacking.  But the end of the article also contain a quote from the media that bears citing:

According to Variety‘s Andrew Wallenstein, however, publishing the stolen data is “problematic but necessary” because it “is in the public domain” and “unavoidable”.

A look at the Variety article linked to in the BBC webpage reveals a self-serving interpreting of right and wrong.

What’s particularly problematic is that even were a publication to abstain from publishing leaked material, dozens of others will do so regardless. Unfortunately, the data is in the public domain for all to consume.

In other words, everyone is doing wrong, so Variety had no choice but to follow suit.  This, sadly, is the attitude of too many people of late.  The notion that something that happens to be public, publicized, published, or merely publicly available because of hacking or leaks makes it “public domain” shows a gross misunderstanding of the concept of public domain and a basic moral bankruptcy concerning the rights of content creators, including authors of private e-mail.  This has been one result of the Internet revolution, and it is not likely to improve.

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Patent Translation: The Best-kept Secret

Readers who have paid translation providers good money for (sometimes) good patent translations might wonder about this title, but many Japanese companies paying excessively high rates to their domestic Japanese patent counsel “to file overseas” for them (something which most Japanese law firms are not actually legally able to do) are often allowed to believe that the process of filing overseas in a non-Japanese language involves not translation, but rather “creation” or “production” of a patent specification in a foreign language, perhaps by some process that is mysterious to or otherwise unknowable by the client. The process is, of course, called translation, but more money can be billed for “creation” or “production.”

If the Japanese client is sometimes oblivious to the translation process, the process of filing an application with the USPTO is inherently divorced from and completely ignores the translation process. Submitted patent specifications are in English, as are declarations by inventors swearing that the inventions described therein are theirs. Not a word about translation.

In spite of the above realities, behind almost 100% of the applications to the USPTO for patents are translators, be they in-house at patent translators in Japanese patent firms (sometimes temporary employees hired from agencies) engaged in the business of translation, or outside patent translation providers engaged by either filing clients or Japanese patent firms.  “Creation” or “production” is not a part of this process.

Client education is starting to take hold, however, and numerous Japanese company have finally come to their senses and have begun to cut out the translation broker function of their Japanese patent counsel.  It is a slow process, however, as Japanese patent firms are highly reluctant to give up their translation business, one that is arguably more profitable than brokering the services of US patent attorneys in filing for their clients.  Things may change, but not without courageous decisions on the part of Japanese clients and considerable efforts on the part of translation providers.

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Blog Restarted

Welcome to our restarted blog.  With the change in our company name to Kirameki Translations, Inc., it was inactive while we were setting up our new website.

The restarted blog will feature content related to such topics as patent and technical translation, deposition interpreting, and language.

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