Supreme Court to Decide if Translation Costs Can Be Recouped

By Phillip at Legal Language
Posted on 01/12/2012
In Legal Translation

Attorneys sometimes handle cases that require translation of documents or the use of an interpreter to take testimony. In particular, transnational litigation involving foreign service of process or foreign witnesses may incur substantial translation or interpreting costs.

The question then arises: Are these “costs of suit” that can be recouped by the winning party?

The answer is not clear. 28 U.S.C. § 1920 allows a winning party to recoup costs for certain categories of expenses incurred during litigation, such as fees associated with filing, printing or electronically recording transcripts; disbursements for printing materials and witnesses; and making copies of relevant litigation materials. Section 1920(6) also allows a court to award the prevailing party costs incurred in relation to court appointed experts, interpreters and special interpretation services (emphasis added).

Circuit courts have been split about whether written translation is equivalent to oral interpreting, and should therefore be covered as a cost of suit pursuant to 28 U.S.C. § 1920.

The issue is now before the US Supreme Court. It is expected that the Supreme Court’s decision will significantly impact how transnational litigation is conducted.

The case at issue, Taniguchi v. Kan Pacific Saipan, LTD, 633 F.3d 1218 (9th Cir. 2011), is before the Supreme Court on appeal from the Ninth Circuit Court of Appeals. The facts of the case involve Kouichi Taniguchi, a former Japanese professional baseball player who fell through a wooden deck at a resort in the Mariana Islands. Taniguchi later sued the resort for negligence, but the resort was granted summary judgment by the district court.

As part of its decision, the district court awarded costs to the resort, “including the costs of translating contracts and other documents from Japanese to English.” Taniguchi appealed and the Ninth Circuit Court of Appeals affirmed the district court’s decision.

The Ninth Circuit’s opinion discusses the split between the Sixth, Seventh, and D.C. Circuits regarding “compensation of interpreters” and the proper interpretation of 28 U.S.C. § 1920. The court focused on section 1920(6) which provides for an award costs incurred in relation to court appointed experts, interpreters and special interpretation services.

In reaching its decision, the Ninth Circuit held that a dictionary definition of “interpret” could include spoken and written translation, agreeing with the view held by the Sixth Circuit and the Court of Appeals for the District of Columbia:

We are persuaded by the Sixth Circuit’s reasoning. District courts are free to interpret the meaning of the cast of categories listed within § 1920. In § 1920(6), the word “interpreter” can reasonably encompass a “translator,” both according to the dictionary definition and common usage of these terms, which does not always draw precise distinctions between foreign language interpretations involving live speech versus written documents. More importantly, the Sixth Circuit’s analysis is more compatible with Rule 54 of the Federal Rules of Civil Procedure, which includes a decided preference for the award of costs to the prevailing party.

633 F.3d at 1221. In reaching this decision, the Ninth Circuit rejected the more limited view of the Seventh Circuit, which has firmly held that an interpreter translates only the spoken, but not the written, word. See id. at 1221-22.

If the Supreme Court agrees with the Sixth, Ninth, and D.C. Circuits that lower courts should have more freedom in determining what costs prevailing parties can recover, the decision will lead to losing parties being responsible for more litigation costs, including the cost of translating documents from one language to another.

Accordingly, the Supreme Court’s decision may significantly impact the manner in which litigants conduct discovery and other aspects of litigation, including limiting the number of foreign documents translated in order to avoid incurring future costs stemming from an award.

Update: The Supreme Court has issued an opinion on this case, ruling that costs of document translation are not included under 28 U.S.C. § 1920.

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