Imagine that your attorney and client are going into a deposition via remote appearance and all the requisite parties are there, including the court reporter, which was booked by the noticing party. The court reporter administers the required oath, and the deposition begins. However, your attorney notices that the court reporter never appears to be doing any typing. Your attorney stops the deposition and says to the court reporter, “Why aren’t you typing?”
Unbeknownst to your attorney, the person presenting as a court reporter is actually a “digital recorder.” Wait. What??
Yep. A digital recorder. Not a Certified Shorthand Reporter (“CSR”).
Due to the shortage of duly licensed stenographic reporters in California, some large court reporting agencies have turned to the use of “digital recorders.” These are usually hourly employees who have become notaries and then trained by the court reporting company. Unlike a CSR, digital recorders are neither licensed by nor subject to the oversight of any regulatory board in California.
A digital recorder simply uses recording equipment to capture the proceedings rather than stenography. The agency that hires the digital recorder then sends the recorded proceeding, in short clips, to various individuals to transcribe, often from different countries. As each transcriber completes their particular portion of the transcript, it is sent back to the court reporting agency, who then assembles all the segments into one transcript.
The above scenario is a true story. It happened to an attorney in San Francisco who appeared remotely with their client, the defendant deponent, for a deposition noticed by plaintiff’s attorney. The deposition notice stated that the deposition would be reported by a Certified Shorthand Reporter, so the deponent’s attorney had no reason to believe that would not be the case. Deponent’s counsel objected to the deposition upon discovering that the proceeding was not being reported by a CSR; however, once the oath has been administered, the deposition must go forward.
The story gets worse. Upon receiving the “certified” deposition transcript, both the deponent’s attorney and the deponent noticed that there were errors and complete omissions of specific questioning and testimony from the transcript. When the attorney contacted opposing counsel and reported that there was a significant amount of testimony missing, opposing counsel responded that the transcript was “flawless.” The deponent then contacted the court reporting agency and told them that the transcript was inaccurate and missing a considerable amount of testimony, to which the agency replied that their investigation concluded that the transcript was accurate.
On the day of trial, opposing counsel attempted to lodge a copy of the defendant deponent’s transcript (which the deponent refused to sign) in an effort to impeach the deponent. Defense counsel filed an objection, and plaintiff’s counsel again stated that the transcript was “flawless” and should be lodged because it was certified and that “meant something.” The court told defense counsel that if they wanted to challenge the veracity of the transcript, they needed to subpoena the court reporter and cross-examine them in court. Fortunately, the trial did not end that day and was continued for several months.
During the continuance of the trial, defense counsel and the deponent doggedly pursued what happened with the transcript. After further investigation and demands for answers from the court reporting agency’s higher-ups, as well as demands for the actual recording, the Director of Operations from the agency finally confirmed what the attorney and the deponent had known all along. The transcript was missing 55 pages – – nearly an hour of testimony!
Ther person who signed off on the transcript was not a licensee, and therefore not vested with any legal authority to certify its accuracy. In fact, this type of transcript does not meet the burden for admissibility at trial “without having to lay a foundation.” California Code of Civil Procedure section 2025.340(m) states, “If no stenographic record of the deposition testimony has been previously made, the party offering an audio or video recording of that testimony under Section 2025.620 shall accompany that offer with a stenographic transcript prepared from that recording.” The law is clear when it refers to a stenographic transcript; that means it must be prepared by a California licensed CSR.
Most of the time when preparing a deposition notice, the notice simply states the deposition will be recorded by “stenographic means” without including language that makes a licensed stenographer an option. The attorney who noticed the deposition in this situation, even though his notice indicated that the deposition would be recorded by stenographic means, didn’t think it was a problem to go forward with the deposition when the court reporting agency did not send him a CSR probably because he thought deponent’s counsel would never be able to tell that the court reporter wasn’t actually typing.
There is no testing nor licensing requirement for digital recorders serving in the indispensable role of a licensed CSR. Likewise, there is no licensure or certification required for the transcriptionists to whom the recordings are sent. However, you will likely see no difference in the invoice you receive from the court reporting agency, even though the person appearing in the role as a court reporter is anything but.
Code of Civil Procedure section 2025.330(b) states: “Unless the parties agree or the court orders otherwise, the testimony as well as any stated objections, shall be taken stenographically. If taken stenographically, it shall be by a person certified pursuant to Article 3 (commencing with Section 8020) of Chapter 13 of Division 3 of the Business and Professions Code.”
The lesson here is to always confirm before any deposition starts, whether your office is the noticing party or not, that the person who appears as the court reporter for the deposition is a Certified Shorthand Reporter, licensed by the State of California. If appearing remotely, always look for the initials “CSR” followed by the license or certification number after the name of anyone who appears in the role of the court reporter, then verbally confirm that they are indeed licensed by the State of California. You even have the right to see their license before the deposition starts.
Licensed CSRs are vested with the legal authority to attest to the accuracy of each transcript they report and to have its admissibility be automatic because of their tested and proven credentials. Additionally, licensed CSRs are officers of the court and serve as guardians of the record. Judges are becoming increasingly aware of this practice of using digital recorders rather than CSRs and disallowing transcripts to be presented for lodging or presented as evidence.
Make sure your court reporter really is a court reporter. Only then can you be certain that the transcript is accurate, complete, and automatically admissible. The success or failure of your case may depend on it.
Categorized in: General
| << previous | next >> |