By Shanna Bergman

We previously explored the issue of who should pay for legal translation services in November of 2011, when the United States Court of Appeals for the Ninth Circuit held in Taniguchi v. Kan Pacific Saipan LTD. 633 F.3d 1218 (9^th Cir. 2011) that the district court did not abuse its discretion in awarding legal translation costs to Kan Pacific, including document translation costs (from Japanese to English) as well as interpretation costs.  The Court of Appeals interpreted 28 U.S.C. §1920(6) (which grants courts discretion to award costs for the compensation of interpreters) to include document translation as part of the costs to be awarded at the conclusion of litigation. The Court of Appeals stressed in their opinion that Rule 54 of the Federal Rules of Civil Procedure includes “decided preference for the award of costs to the prevailing party and thus, the prevailing party should be awarded costs for services required to interpret either live speech or written documents into a familiar language so long as interpretation of the items is necessary to the litigation”.  Taniguchi appealed and the Supreme Court of the United States granted certiorari to hear the case, which could have a big impact on who pays for legal translations.

The case was argued before the Court on February 21, 2012 and the decision came down on May 21, 2012.  The decision was highly anticipated in the litigation world as, amongst other things, a decision that “interpretation” is the same thing as written legal translation in the context of reimbursement for these expenses, could potentially shift the entire “cost-benefit” analysis for commencing litigation in the first place.

The Supreme Court has now held that “because the ordinary meaning of interpreter is someone who translates orally from one language to another, the category ‘compensation of interpreters’ in §1920(6) does not include the cost of document translation”.  Taniguchi v. Kan Pacific Saipan LTD, 566 U.S.____(2012)  In its opinion, the Court stated that “when a term is not defined in a statute (as is the case here) we give the term its ordinary meaning” Id.   The Court turned to several authorities to determine the ordinary meaning of “interpreter”.  They cite the following:  American Heritage Dictionary defined the term as one who translates orally from one language to another; Scribner-Bantam English Dictionary defined the word “interpret” as to “translate orally”; Random House Dictionary defined “interpret” as to translate what is said in a foreign language; Oxford Dictionary defined interpreter as one who translates languages (breaking it down into two sections)…one who’s office it is to translate the words of persons speaking different languages, esp. orally in their presence; Black’s Law Dictionary defines “interpreter” as a person sworn at trial to interpret the evidence of a foreigner to the court and “interpret” as to translate orally from one tongue to another. Id.   In addition, the Court noted that the statutory context of the Court Interpreters Act (noting that Congress enacted §1920 as part of the Court Interpreters Act) is a program to facilitate the use of qualified interpreters in judicial proceedings before the courts of the United States in any action, civil or criminal, where a witness or party speaks only or primarily a language other than the English language. The opinion goes on to state that the statute also gives very precise instructions for interpretation (i.e. simultaneous interpretation, consecutive mode etc.).  The Court stated that given these specificities, there is strong evidence that “Congress was dealing only with oral translation in the Court Interpreters Act” and nothing to do with the legal translation of documents.

With respect to Rule 54, the Court notes that “the discretion granted by Rule 54(d) is not a power to evade the specific categories of costs set forth by Congress…thus provides no sound basis for casting aside the ordinary meaning of the various items enumerated in the costs statute, including the ordinary meaning of ‘interpreter’” Id.

As an interesting final note, and one to perhaps consider as we move forward, Justice Ruth Bader Ginsberg notes in her dissent that  “Some translation tasks do not fall neatly into one category or another” (i.e. legal document translation or interpreter). She states that sometimes an interpreter “may be called upon to sight translate a written document” (i.e. convey the substance of a written document orally). Id.

So essentially, the Supreme Court has decided to maintain the status quo of reimbursement for interpretation services but not for document translation services related to litigation. Those entering into commercial or patent litigation which may require extensive legal translation of foreign-language documents need not fear paying a hefty translation bill should they lose their case, though it is still a good idea to factor in the legal translation costs they will assume, which are often far higher than originally anticipated.

The costs of legal translation incurred during litigation can be enormous. Document translation fees for a complex, cross-border litigation case can easily reach hundreds of thousands of dollars, if not more. Who should pay for translation services, and should the winner be reimbursed for the huge expense?

The Supreme Court will weigh in on this issue during its 2011-2012 term, which began last month. On the court’s docket is  Taniguchi v. Kan Pacific Saipan, LTD, 633 F.3d 1218 (9th Cir. 2011) a case which will impact to what extent courts can award the winning party money spent for legal translation services during the course of litigation.

The case began when professional Japanese baseball player Kouichi Taniguchi fell through a wooden deck on Kan Pacific property and tore several ligaments. The injuries prevented him from playing, and he was forced to breach his contract. He sued Kan Pacific for negligence in order to cover lost wages, but ultimately lost the case. In addition, he was ordered to pay $5517.20 in legal translation costs to Kan Pacific for documents translated from Japanese to English. Taniguchi appealed.

In deciding Taniguchi, The 6th circuit had relied on U.S. Code § 1920. Title 28,1920 states that a court may reimburse the winning party for certain expenses like filing and printing transcripts, and also for certain interpretation services. The court relied on a dictionary definition of “interpret” which included “to translate into intelligible language.” Based on this, the court determined that “translation” and “interpretation” are interchangeable and that translation services should also be covered. Now as most translation companies will tell you, “interpretation” and “translation” are not synonymous. Translation involves written text; interpretation is oral and involves a speech or phone conversation. On appeal, The 7th circuit argued that this expansive definition of “interpreter” went too far, and split on allowing litigation costs like document translation to be included on the list of recoverable costs.

It was up to the 9th circuit to decide, and it ultimately agreed with the 6th circuit that courts could award the winning party the costs of legal document translation. Now it is up to the Supreme Court to make the final decision which could have far-reaching implications. The same reasoning that led the 9th circuit to decide in favor of reimbursing translation costs could impact e-discovery and a range of other litigation expenses. The cost-benefit analysis of entering into litigation could shift considerably given the potential reimbursement demands. Parties might agree to limit the amount of discovery and translation they do to hedge against paying the full costs later on, and the discovery process could become much more limited for certain cases. We’ll have more to say when this case is decided.