Advisory Opinion 10
Agency transcribing depositions taken by reporters no longer with the firm
(Originally adopted in 1989; combined with No. 33, 2013)
Statement of Facts
A client requested an expedited transcript of a deposition. The independent contractor who reported the proceeding was in the hospital recuperating from surgery and therefore was unable to prepare the transcript. The agency owner requested a copy of the notes and/or a computer disk so the agency could prepare an uncertified copy for the client. The reporter refused. What are rights of the agency and the obligations of the reporter when the reporter is unavailable to prepare the transcript due to vacation or illness?
The Committee believes that the best practice is for the officer before whom the proceeding is taken to actually transcribe the proceeding, and that the Federal Rules and most state rules patterned after the Federal Rules impose an implied responsibility on the officer before whom the proceeding is taken to transcribe same. This is a responsibility, not an absolute right. In order to maintain the integrity of the profession as required by Provision 9 of the NCRA Code of Professional Ethics, it is an obligation of the agency to contact the original reporter. The agency must give the reporter the opportunity to prepare the transcript. It is the reporter’s responsibility to do so in a timely fashion. When the reporter is unable, unavailable or refuses to do the work in a timely fashion, it is the reporter’s duty to provide to the agency the files necessary to prepare a transcript. In that case, an appropriate certificate page must be attached.
Provision No. 5 of the Code requires the reporter to be truthful and accurate when making public statements. Therefore, the agency must prepare an appropriate certificate disclosing the circumstances under which the transcript was produced.
The Committee has determined that Provision No. 9 of the Code of Professional Ethics requires both the agency and the reporter to put the needs of the parties to the proceeding over any other concerns. Because the best practice is for the reporter taking the proceeding to prepare the transcript, the agency must give the reporter the opportunity to do so. The reporter must then make every effort to transcribe the proceeding in a timely fashion. When a reporter is unable, unavailable or refuses to do the work in a timely fashion, the firm may do what is necessary to ensure that the needs of the parties to the proceeding are met. In the situation described above, if the reporter refuses to give a copy of the notes to the agency knowing that the parties will be harmed by the delay in the transcription, this would be considered a violation of the Code. Provision No. 5 requires the firm to prepare an appropriate certificate disclosing the circumstances under which the transcript was prepared if someone other than the reporter who reported the proceeding produces the transcript.
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.