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Litigation: Lost in translation

How the Supreme Court can change the landscape of awarding costs

The Supreme Court reconvenes this week to begin its 2011-2012 term. While the docket is full of well-publicized cases, the less heralded case, Taniguchi v. Kan Pacific Saipan, LTD, 633 F.3d 1218 (9th Cir. 2011) may have an untold impact on the extent to which courts can award prevailing parties their litigation costs. The Supreme Court granted certiorari to resolve a circuit split among the 6th, 7th and 9th Circuits regarding whether district courts can use 28 U.S.C. § 1920(6) to allow a prevailing party to recover the money spent for translating documents into another language. However, if the court addresses the reasoning that underlies Taniguchi, the potential impact of the case can reach well beyond the victor recouping its costs for using an interpreter; it can affect how parties conduct discovery as a whole.

Taniguchi arose out of a general slip-and-fall. Taniguchi, a professional Japanese baseball player, fell through a wooden deck while on Kan Pacific property and suffered several torn ligaments. Because the injuries precluded him from playing professional baseball, Taniguchi was forced to breach his baseball contract. In an attempt to recover his lost wages, he sued Kan Pacific for negligence, ultimately losing when the court granted Kan Pacific summary judgment. Adding insult to injury, the court awarded Kan Pacific costs incurred for translating Taniguchi’s baseball contract, as well as other documents, from Japanese to English. The court relied on § 1920(6) for the authority in making its decision. Taniguchi appealed the award.

Generally, § 1920 allows the winning party to recoup its costs for certain categories of expenses 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. Specific to Taniguchi, § 1920(6) allows the court to award the prevailing party costs incurred in relation to court appointed experts, interpreters and special interpretation services.

In deciding Taniguchi, the 9th Circuit had to determine how loosely it would let lower courts define what costs fall within the categories of § 1920(6). The court reviewed both the 6th and 7th Circuits’ decisions that addressed this same issue. The 6th Circuit found that courts have the freedom to interpret the meaning of the categories of awards within § 1920, including whether varying litigation costs fell within the definition of a particular category. Relying on the dictionary definition of “interpret,” which included “to translate into intelligible or familiarly language,” the court determined that “translation” and “interpretation” are synonymous and effectively interchangeable. As interchangeable terms, courts can award the prevailing party with its costs spent translating documents from one language to another. In contrast, the 7th Circuit acknowledged the expansive dictionary definition of “interpreter” but believed that translating written documents from one language to another stretched § 1920 too far beyond its intention. The court showed a greater hesitancy to let lower courts include certain litigation costs within the § 1920 categories, accordingly limiting their ability to make certain litigation costs recoverable.

The Taniguchi court ultimately agreed with the 6th Circuit, invariably deepening the circuit split. The 9th Circuit found that courts could award costs to a prevailing party for money spent translating documents. The Taniguchi court reasoned that such a result is more compatible with Federal Rule of Civil Procedure 54 that provides a preference for awarding costs to the prevailing party.

As the Supreme Court prepares to review Taniguchi, the court’s receptivity to the reasoning behind the 6th and 9th Circuits’ opinions is critical. Both found a greater willingness to let lower courts determine what costs fall in the categories of items listed in § 1920. While the 9th Circuit affirmed that courts may use § 1920(6) to grant translation costs, other courts have employed the same reasoning in using § 1920 to grant prevailing parties recovery of their e-discovery costs. If the Supreme Court agrees that lower courts should have such freedom in determining what costs prevailing parties can recover, the decision will lead to losing parties footing more of the bill, as victorious parties attempt to paint their costs as “interchangeable” with the specific categories in § 1920. Otherwise, because the expansive reading by the 6th and 9th Circuits grants courts the freedom to determine that e-discovery costs are also recoverable, the decision could affect how parties conduct discovery in general, potentially leading parties to agree to limit the amount of discovery they conduct in an attempt to hedge paying the costs if they lose.

If the Supreme Court addresses the reasoning behind Taniguchi and analyzes § 1920 as a whole, the implications can span beyond just awarding costs for translation services. The opinion can provide direction for lower courts to determine how broadly they should interpret § 1920, which in turn, could significantly affect how litigants conduct discovery and weigh the costs and benefits of onerous discovery demands. Stay tuned.

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Matthew Ingber

Matthew Ingber is a litigation partner at Mayer Brown.

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