This could make a difference in the language access debate.

On February 21, the Supreme Court will hear oral argument in the case of Taniguchi v. Kan Pacific Saipan, Ltd.

This case, appealed from CNMI (Commonwealth of the Northern Mauritania Islands ) through the Ninth Circuit, deals with whether costs of interpretation of documents are payable by the losing party under 28 U.S.C. §1920(6).  Here is the SCOTUS blog sumary:

Issue: Whether costs incurred in translating written documents are compensation of interpreters and may therefore be awarded to the prevailing party in a federal lawsuit under 28 U.S.C. §1920(6).

Plain English Issue: A federal law provides that the losing party in a lawsuit may be required to reimburse the winning party for some of the costs of the lawsuit, including the costs for “compensation of interpreters.” The question presented is whether these costs include the money paid to translate written documents from a foreign language into English.

Key phrase from the Ninth Circuit opinion:

[T[he 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. See Fed.R.Civ.P. 54(d) (providing that absent a federal statute, rule or court order to the contrary, costs “should be allowed to the prevailing party”); see also Quy, 667 F.2d at 1065-66 (concluding that translation of deposition testimony was necessary). We therefore agree with the Sixth and D.C. Circuits that within the meaning of § 1920(6), 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. (Emphasis added.)

Obviously if the decision hinges completely on the history of the statute, then it will not have much impact.  If however, it ends up in any kind of policy analysis about the meaning of “interpreter” as a word, then it could have impact on the state court debate.

The briefs are, and will be, here, as they come in.

I note that the the National Association of Judiciary Interpreters and Translators, and a group of academics in the field, have both filed amicus briefs urging reversal.  They take a strong position that the words interpreter and translator have different meanings, and that therefore the cost shifting statute should not be applied to translators, who they see as dealing with documents, rather than live interpretation of spoken testimony.

I am somewhat concerned about the possible negative impact of this position on funding for access-related language services, although increasing cost shifting itself can cut both ways in access terms (I would think that threats of increased cost shifting can act as either incentives or disincentives to plaintiffs, although in aggregate, I would think the disincentive risks are greater, but only if the costs are high).  I will blog further it I am persuaded either way.

As I understand the professionals position, they are deeply concerned to maintain the distinction between the two skills.  I hope that they are not forgetting the access forest for the linguistic trees.

Journalistic summary from the Saipan Tribune.

Thanks to Claudia Johnson for catching this (although the perspective is entirely mine).