Why Your Deposition Reporter May Refuse to Let You Go “Off the Record”
Consider this scenario: You’re an attorney who is conducting depositions into a complicated abuse of discretion case. The opposing counsel and his client will be present, but mostly you will be deposing a couple of financial experts and two officers of the corporation at the heart of the case. You weren’t looking forward to this day—all the talk of numbers and accounting tricks is sure to give you a headache.
The day got worse. Everyone was on edge and argumentative from the start of the day; even your own experts were disagreeable. Right after the lunch recess, the opposing lawyer seemed to object to every question you asked. Finally—in order to try to agree on some ground rules with the other attorney—you tell the court reporter to go off the record.
She looks to opposing counsel, who smugly shakes his head. She turns back to you and says, “I’m sorry, we must remain on the record.”
Well! This is your depo—in fact, you made the arrangements with the court reporting firm and you’re paying to use the deposition room. Don’t you get to call the shots?
“I Paid for This Deposition and I’m Going to Run it How I Please!”
In fact, the answer is No, you don’t always get to make the rules, even if you’re the person who’s footing the bill.
The issue of who is in control of a deposition meeting can be a tricky one. There is no person filling the equivalent of the judge’s role in a courtroom. Often, the participating attorneys will take turns securing a neutral meeting space and hiring a court reporter to provide transcripts of what occurred. But the legal representatives on both sides have equal authority once the session begins.
Sometimes, the situation starts to look like fourth-grade recess when the playground monitor is nowhere to be found.
Except there’s the court reporter. The person recording the session may well have participated in more depositions than both attorneys combined. This depth of experience is reinforced with a set of ethical rules no less serious than the canons binding the lawyers. The result is that sometimes your court reporter may be in a position to tell you what to do, even if you have hired her.
The smart thing to do would be to listen to her.
The Special Rule for Going Off Record in a Deposition Session
The function of a court reporter in a deposition is to record everything that is said as accurately and completely as possible. That means the default mode is always “on the record” once a deposition session begins.
Ethical rules require the reporter not to show partiality in any way. That means neither side alone can tell the reporter when to pause; only if the attorneys for both sides agree to suspend recording will the court reporter stop. The flip side of this rule, of course, is that only one attorney needs to say “we’re back on the record” to send the reporter back to her duties.
The National Court Reporters Association’s Code of Professional Conduct provides ethical guidance for the reporters at Casamo & Associates. We’re fully informed about NCRA Advisory Opinion 23, which sets out how a court reporter must act when the request is made to go off the record in a deposition. Our obedience to strict ethical rules protects everyone’s interests in the long term, even if you’re a lawyer who is temporarily inconvenienced.
Our court reporting team stands ready to assist you at your next deposition. Feel free to use our online scheduler right now to book our services for your upcoming deposition.