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Advisory Opinions

Advisory Opinion 9

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Selling the transcript to third parties/When is a deposition a public record

(Originally written, 1989; Revised, 1997)

 


THIS PUBLIC ADVISORY OPINION REFLECTS THE STATUS OF THE LAW IN MOST JURISDICTIONS. MEMBERS ARE REQUIRED TO CONFORM TO THE ACCEPTED PRACTICES SET FORTH IN THIS PUBLIC ADVISORY OPINION TO THE EXTENT THAT SUCH PRACTICES ARE CONSISTENT WITH THEIR OWN APPLICABLE STATE AND LOCAL LAWS, RULES AND REGULATIONS.

Statement of Facts

A reporter sells copies of a deposition transcript to parties other than the litigants, including the press. Is this practice a violation of the Code of Professional Ethics?

Discussion

Although rules vary from state to state, in general, a deposition transcript becomes a public document when it is filed with the court and becomes a part of the record in an official proceeding. Under the laws of most states, therefore, a deposition that has not been filed as part of an official proceeding is not a public document.

Provision No. 4 of the Code of Professional Ethics provides that a reporter has an obligation to preserve the confidentiality of information entrusted to the reporter by the parties. It is the Committee's opinion that the parties have the right to expect that any information entrusted to the reporter will be kept confidential until the parties themselves decide to make the deposition a public document. Unless a deposition transcript has been made a part of the public record, the reporter must obtain the permission of all parties and the deponent (not just the hiring party) before selling or otherwise releasing the transcript to any third party.

Once a deposition transcript has been made a part of the public record, subject to any protective order or state or local rule to the contrary, the reporter may sell the transcript to third parties without the consent of the parties or the deponent.

Conclusion

It is the Committee's opinion that the selling of deposition transcripts that have not been made part of the public record to other than the litigants and the deponent without the agreement of the litigants and the deponent constitutes a violation of Provision No. 4 of the Code of Professional Ethics.

Once a deposition transcript has been made a part of the public record, subject to any protective order or state or local rule to the contrary, the reporter may sell the transcript to third parties without the consent of the parties or the deponent.