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.
The 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.