New York’s Appellate Division, Second Department faced a novel question regarding interpreter bias at depositions. Zhiwen Yang v Harmon, (2023 NY Slip Op 00893 [2d Dept 2023]) stemmed from a Queens County Supreme Court decision denying the defendant’s motion to vacate an order directing the plaintiff’s daughter, who happened to be a material witness, serve as her interpreter at a deposition.

Any time an appellate court faces a novel issue, litigators would be wise to take notice, as decisions in such cases should inform future practice.

Prior to Yang, the Second Department only faced one case involving the same universe of issues. In Matter of Edwin N. (51 AD3d 928 [2d Dept 2008]), the appeal was based on Supreme Court’s failure to provide the defendant’s mother with an interpreter. The Appellate Division found the trial court did not err, as an interpreter was made available before the presentation of the defendant’s case and the defendant’s sister was a suitable disinterested interpreter.

In another case, Matter of James L. (143 AD2d 533 [4th Dept 1988]), the Fourth Department held it was improper to allow a son to serve as his mother’s interpreter because the court failed to (1) inquire as to a disinterested interpreter, (2) question the son to ascertain the extent of his bias, and (3) to admonish the son to translate exactly what he heard.

However, in People v. Lee (89 AD3d 633 ([1st Dept 2011]), the First Department allowed a court-employed interpreter who was acquainted with a defendant to service because of (1) his awareness as to his duty, (2) the court questioning him about his bias, and (3) his lack of awareness of the facts surrounding the case.

Yang: Should Plaintiff’s Daughter, a Material Witness, Serve as Court Interpreter?

Yang is a medical malpractice action. The plaintiff’s deposition was scheduled and defense counsel retained a Mandarin interpreter per the instructions of the plaintiff’s counsel. However, the interpreter did not speak the specific dialect of Mandarin, the deposition did not go forward, and defense counsel began the search for a new interpreter. This included contacting the Chinese Consulate in New York and the Asian Bar Association.

Because no interpreter could be found, Supreme Court ordered the plaintiff’s daughter serve as the interpreter at the plaintiff’s deposition. After the order was issued, defense counsel advised plaintiff’s counsel it found another interpreting company that may be able to provide an interpreter but needed additional information. Defense counsel provided plaintiff’s counsel with a map of the plaintiff’s native province and asked her to circle where in the province she was from. Defense counsel also requested the plaintiff circle her dialect from a list of 12 defense counsel provided. The plaintiff failed to respond.

Defense counsel moved to vacate the order that the plaintiff’s daughter should serve as an interpreter, citing (1) she was a material witness having accompanied the plaintiff to medical appointments and interpreted between her and the defendant physician, and (2) she was related to the plaintiff. In response, plaintiff’s counsel submitted an affidavit from the daughter where she averred she would interpret “accurately, completely, and impartially.” Plaintiff’s counsel further argued defendants did not meet their burden of showing the daughter was biased, or that there was a suitable alternative interpreter. Supreme Court denied the motion without explanation and the appeal followed.

Court Sets Standards for Using Interested Interpreters

The Court focused on whether there are ever circumstances in which a relative can serve as a party’s interpreter. Because this issue was novel to the Second Department, the Court looked to non-precedential New York law, federal law and other state law for guidance. As a result, the Court set forth the standard that an interpreter who is a relative and has personal knowledge of the case is only permissible “under exceptional circumstances.” To determine whether exceptional circumstances are present, courts must consider: “(1) whether sufficient information has been disclosed by the party in need of an interpreter to the court and to opposing parties so as to allow for a thorough search for a disinterested interpreter; (2) whether an exhaustive and meaningful search has been conducted for a disinterested interpreter; (3) whether the potential interpreter is the least interested individual available to serve as interpreter; and (4) whether the potential interpreter is capable of objectively translating the testimony verbatim, which may only be assessed after the court has conducted an inquiry of the potential interpreter.” All four of these elements must be satisfied for such a person to serve as an interpreter. Applying this standard to the facts of this case, as to the first element, the Court held that because there is no evidence in the record the plaintiff disclosed her specific dialect to the court, defendants, or translation companies, the defendants could not undertake a thorough search.

For the second element, the Court held it was obvious there were numerous efforts made to find a disinterested reporter, but without the dialect, it cannot be said that a meaningful search was undertaken.

Third, the Court reasoned there was no indication in the record as to the possibility of a less-interested interpreter. For instance, the Court posited that a different member of the same family – who was not a material witness – could have served as interpreter.

Finally, the Court reasoned Supreme Court did not conduct any inquiry into the plaintiff’s daughter’s capacity to be objective.

Given this application of the standard, the Court found Supreme Court should have granted the motion to vacate the order directing the daughter to serve as interpreter.

Any time an appellate court faces a novel issue, litigators should take notice. Whereas before this decision, parties would face uncertainty as to how to proceed in this situation, now the Court has set forth a clear standard consisting of specific elements that must be met. Such a decision lays out clear groundwork that should inform New York practitioner’s decisions.

If you have questions about this case or related matters, please reach out to Harris Beach’s Mass Torts and Industry-wide Litigation attorneys, including Abbie Eliasberg Fuchs at (212) 313-5408 and afuchs@harrisbeach.com; Judi Abbott Curry at (212) 313-5404 and jcurry@harrisbeach.com; Bradley M. Wanner at (212) 912-3653 and bwanner@harrisbeach.com.

This alert is not a substitute for advice of counsel on specific legal issues.

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