Gary A. Thornton 2015-09-30 02:31:25
You might save a few dollars, but is it wise practice? Question #1: Can a Texas attorney act as his or her own videographer? Short Answer: Yes! The Texas Rules of Civil Procedure provide for multiple types of “non-stenographic recording” of depositions, which may be used in court “to the same extent as a deposition taken by stenographic means.”1 Question #2: Must an attorney use a certified court reporter for obtaining a written transcript? Short Answer: No, but such a “do-it-yourself” undertaking may be more expensive or impractical. While both of the above examples are technically allowable, there are details to consider. The Texas Rules of Civil Procedure require that if the deposition will be taken “by other than stenographic means,”2 a notice must be given, stating “the method of non-stenographic recording” (audio/video tape, digital, etc.) and allowing any other party to serve notice “designating another method of recording in addition to the method specified ...” In other words, if you doubt the ability of the opposing attorney to record the deposition, desire another means of recording, are in a hurry for your copy of the recording, or are afraid of the other attorney canceling the recording or showing up with no recording equipment, you can bring your own equipment as long as you give proper notice. While the general notice of an oral deposition must be given “a reasonable time before the deposition is taken,”3 the notice for non-stenographic recording must be given five days before the deposition. Question #3: Must you also supply a certified stenographer or court reporter? No. The same rule (199.1(c)) says that the notice must state “whether the deposition will also be recorded stenographically.” That issue arose 35 years ago in the case of Burr v. Shannon, 4 in which the Texas Supreme Court held that non-stenographic depositions were allowable but that this “does not eliminate the requirement that the recording be reduced to writing.” Burr discussed that issue in connection with what is now the Texas Government Code. Except as provided by Section 154.101(f) and by Section 20.001, Civil Practice and Remedies Code, all depositions conducted in this state must be recorded by a certified court reporter.5 Texas Government Code Section 154.112(b), however, provides: (b) A non-certified shorthand reporter may report an oral deposition only if: (i) the non-certified shorthand reporter delivers an affidavit to the parties or to their counsel present at the deposition stating that a certified shorthand reporter is not available; or (ii) the parties or their counsel stipulate on the record at the beginning of the deposition that a certified shorthand reporter is not available.6 But those restrictions do not apply to a party to the litigation, the attorney of a party to the litigation; or a full-time employee of a party or party’s attorney.7 As discussed in the Burr case, the Texas Supreme Court provided that the attorney of a party in the litigation could have the deposition reduced to writing by a “full-time secretary ... [who] is a notary public and as such she is authorized by the exception. ...”8 Three years after the Burr decision, in 1983, the Texas attorney general concurred: Other than parties to litigation, their attorneys or the full-time employees of either, only official court reporters and deputy court reporters holding certificates issued by the Supreme Court of Texas may engage in the practice of shorthand reporting. … 9 Several disadvantages exist, however, for an attorney attempting to act as his or her own videographer and/or court reporter. First, it can be challenged. The Burr case suggests that “a trial court may impose other protective procedures.” Second, if a notice of non-stenographic recording does not strictly comply with the rules, the possibility exists for arguments among counsel while the witness waits to have his or her deposition taken. Also note that Texas Rule of Civil Procedure Rule 203.6 states: ... the court, for good cause shown, may require that the party seeking to use a non-stenographic recording or written transcription first obtain a complete transcript of the deposition recording from a certified court reporter. A court reporter’s transcription must be made from the original or a certified copy of the deposition recording.10 To prevent delays and arguing at the time of the actual deposition, it is wise to make clear in the notice the method of recording, that counsel will provide the recording equipment (without this clarification, the court reporter may arrange a videographer for you), that the non-stenographic recording will be available to other parties, and, if applicable, that a court reporter will not be used but a full-time employee of the video-taking attorney who is also a notary will transcribe the testimony from the original recording. As an additional precaution, a Rule 11 agreement on these or other terms may be advisable. The operational distractions during the deposition testimony as well as the time it takes staff to comply with the above steps may prove less efficient than using a videographer and/or certified court reporter. Additionally, both videographers and certified court reporters can add value in the areas of providing necessary equipment, swearing the witnesses, keeping track of times spent by each party, synchronizing text to video, instant verbal review of questions/answers during the deposition, notary service, copying, security of exhibits, security of the recording, the lack of any conflict of interest, additional specialized training, and more. Yes, you can save the cost of a videographer for a small investment in equipment. A recent article in Trial magazine lists the equipment needs as digital memory cards ($30-$50 each), a small audio mixer (approximately $100), several small lapel microphones (as low as $35 each), a $600 camcorder, a small tripod, and an optional remote control for camera stop and start.11 But practical considerations are paramount. Such potential cost-savings are probably warranted only where a volume of similar cases are being handled in non-jury or arbitration situations. The mere self-recording of depositions, however, may increase civility of all in attendance. NOTES 1) Tex. R. Civ. P. 203.6(a). 2) Tex. R. Civ. P. 199.1(c). 3) Tex. R. Civ. P. 199.2(a). 4) Burr v. Shannon, 593 S.W.2d 677 (Tex. 1980). 5) Tex. Gov’t Code Ann. § 154.101(f) (Vernon 2013) (Note that the reference to § 20.001, Texas Civil Practice and Remedies Code, may not be generally applicable here as it pertains to depositions on written questions, witnesses outside Texas or the U.S., and depositions of a member of the U.S. Armed Forces.) 6) Tex. Gov’t Code Ann. § 154.112 (Vernon 2013). 7) Tex. Gov’t Code Ann. § 154.114 (Vernon 2013). 8) Burr at 678. 9) Tex. Att’y Gen. Op. No. JM-110 (1983). 10) Tex. R. Civ. P. 203.6(a) (Vernon 2014). 11) Linda Fermoyle Rice & Todd J. Bloomfield, Be Your Own Deposition Videographer, 51 Trial 24, January 2015. (Note, this periodical does not discuss Texas law.) GARY A. THORNTON graduated from Pepperdine Law School and subsequently served as a briefing attorney at the Texas Supreme Court for Chief Justice Jack Pope. Since then, he has been an attorney with Jackson Walker (and its predecessor, Small, Craig and Werkenthin) for 32 years. He practices in the area of employment law, specializing in the defense of nonsubscriber on-the-job injury cases.
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