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Nov 13 2014

Defendant to arrange for interpreter for applicant’s deposition

Solano v. WCAB (W/D) (79 CCC 1092):

Defendant scheduled applicant’s deposition.

Applicant’s attorney requested a Spanish-speaking interpreter to be present at the deposition. Defendant denied the request and applicant filed a petition for a protective order asking that the WCAB allow the applicant to select his own interpreter for the deposition.

The matter came to hearing and the WCJ, relying on the case of Contreas v. Gibson Farms (213 Cal. Wrk. P. D. LEXIS 462, as well the plain language of Labor Code § 5811, ruled that defendant had the right to appoint an interpreter for the deposition.

The WCJ issued an order denying applicant’s petition for a protective order. In denying applicant’s request to select his own interpreter the WCJ explained that, pursuant to Labor Code § 5811 and the holding in the Contreras case, the party that notices the deposition, or produces the witness, is entitled to select the interpreter.

Applicant filed a petition for reconsideration.

The WCJ stated that, based on the unambiguous language in Labor Code § 5811 (b) (1) which provides that the party “producing the witness” must select and provide for appropriate interpreter at a deposition, where defendant notices applicant’s deposition the plain meaning of the “producing party” in Labor Code § 5811 (b) (1) confers upon defendant the duty to select and provide a certified interpreter.

The WCJ further explained that neither applicant’s concerns over attorney-client privilege nor his potential anxiety over the litigation process were sufficient basis to strip defendant of its right to select the interpreter for applicant’s deposition.

The WCAB, in the Contreras case, notes that it is typical practice in the workers compensation field for defendant to arrange for the court reporter and interpreter for applicant’s deposition and dispels notions over potential breaches of the attorney-client privilege.

Applicant may be a nervous litigant and may feel more comfortable with an interpreter selected by his attorney; however, nervousness due to applicant’s unfamiliarity with the potentially intimidating process may be experienced by any applicant, regardless of linguistic ability, and as such, this does not tip the scale here.

With respect to applicant’s concern over the neutrality of an interpreter who has an exclusive fee arrangement with the employer/carrier, the WCJ pointed out that such advance fee arrangements are expressly allowed under Regulation 9793.3 (d) and, in fact, occur in most aspects of Worker’s Compensation discovery and litigation. According to the WCJ the existence of a contract for services does not automatically impair or prevent the certified interpreter from interpreting applicant’s testimony in a neutral manner.

Applicant filed a petition for removal or in the alternative a petition for reconsideration.

The WCJ, in his report, quoted Labor Code § 5811 (b) (2) and indicated that, based on the unambiguous language in Labor Code § 5811 (b) (1) where defendant notices applicant’s deposition, the plain meaning of the “producing party” in Labor Code § 5811 (b) (1) confers upon defendant the duty to select and provide a certified interpreter.

The WCJ also pointed out that, as applicable to interpreters, Labor Code§ 5811 (b) (2) expressly states that the duty of an interpreter is to accurately and impartially translate oral communications and transliterate written materials and not to act as an agent or advocate.

Additionally, the WCJ pointed out that Labor Code § 5811 (b) (2 ) mandates that all interpreters be qualified by way of certification or deemed certified, and states that the certified interpreter must not disclose confidential communications. Any attempt by a party to obtain disclosure of confidential information is construed as a bad faith tactic and is subject to Labor Code§ 5813 sanctions.

The WCJ also observed that, as discussed in Contreras case, there is a long past practice of defendants hiring interpreters for applicant’s deposition without negative consequences.

The WCAB dismissed applicant’s petition for reconsideration as it was not taken from a final order and denied removal for the reasons stated in the WCJ’s report, which the WCAB adopted and incorporated.

Applicant filed a petition for writ of review which was denied.

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