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Interpreting who pays the cost of translators

The U.S. Supreme Court will soon decide whether the costs of document translators are covered under a federal statute that requires the losing party in litigation to pay for “compensation for interpreters.”

The case, Taniguchi v. Kan Pacific Saipan, involves a premises liability claim brought by a Japanese baseball player who was injured after falling through the slats of a wooden dock at a resort in the Northern Mariana Islands.

During the discovery process, the property owner incurred more than $5,500 in costs to translate summaries of medical records and other documents.

After the defendant was granted summary judgment, he sought to be reimbursed for the translator fees under 28 U.S.C. §1920, which allows a prevailing party to seek costs for, among other things, “compensation for interpreters.” The District Court awarded the costs.

The plaintiff appealed both the summary judgment grant and the award of fees, arguing that translation services do not fit within the meaning of “interpreters.”

The 9th Circuit disagreed and affirmed, and the Supreme Court granted cert.

Cost in translation?

At oral argument, Michael S. Fried, a partner in the Washington office of Jones Day who represented the petitioner baseball player, argued that §1920 is limited to spoken communication, not translation of written documents.

Justice Sonia Sotomayor asked whether that made sense.

“I read the common dictionary and there is no question that the primary meaning of ‘interpreter’ is interpretation of oral languages,” Sotomayor said. “But the dictionary is broad enough to include translation work as well.”

Sotomayor noted that many courts have long covered translation services under §1920. “Why should we muck with what works?” she asked.

“I think the primary reason why the court should not adopt that is because it’s inconsistent with the text,” Fried said.

Justice Antonin Scalia suggested another response: “‘It’s wrong’ is your answer, right?” Scalia asked Fried.

“Yes, your honor,” Fried said.

His opponent, Dan Himmelfarb, a partner in Mayer Brown’s Washington office, said the court should focus on the plain meaning of “interpreter.”

“The broader meaning is a person who translates from one language to another,” Himmelfarb said. “Under this definition, the terms ‘interpreter’ and ‘translator’ are used interchangeably.”

“Aren’t you asking for an interpretive principle that errs on the side of breadth rather than narrowness?” asked Justice Elena Kagan. “Why don’t we just ask what is the most common meaning?”

“You have two possible common usages,” Himmelfarb said.

If one were to do a news database search of the word “interpreter,” Justice Samuel A. Alito Jr. asked, how many times in 1,000 hits would it be used to refer to translation of a written document?

“I would not be at all surprised if it was more than 50 percent of the hits,” Himmelfarb said.

“If you bet me enough, I will look at 1,000 [documents],” Alito responded. “I would be surprised if it’s 2 percent.”

A decision is expected later this term.

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