Advisory Opinion 14

Retaining and distributing disks and/or data (1993)

Statement of Facts

A questionnaire distributed by the Committee on Professional Ethics asked "What changes, if any, would you like to see made in the Code [of Professional Responsibility]? Please be specific." Among the responses was "Disks retention/distribution; tighten up reporters' responsibilities to their clients."

The Committee on Professional Ethics similarly determined that an advisory opinion was necessary on the subject of disk/data retention and distribution. To clearly address the issues at hand, the Committee separated the issues into two parts: (i) disk and/or data retention; and (ii) disk and/or data distribution.

Disk and/or Data Retention

Discussion

On the issue of disk and/or data retention, the Committee finds that Provisions 3, 4 and 9 clearly apply. Disk and data retention comes under the same standards as the retention of shorthand notes, printed transcripts, exhibits or other elements of producing the record that are under the care and responsibility of the court reporter. These standards are contained in the local, state and federal statutes, the Certified Shorthand Reporter acts of the various states, the rules of the local, state and federal courts or administrative departments, or at the very least, as outlined by local custom and usage.

Conclusion

Failure to abide by the standards described above is a violation of Provisions 3, 4, and 9 of the Code.

Disk and/or Data Distribution

Discussion

Since disk and/or data distribution are governed by the same laws or standards as disk and/or data retention, the reporter must adhere to such laws or standards. However, because many of the products and services that are now provided by reporters are not directly addressed in existing legislation or rules, additional discussion follows, with Provisions 1, 2, 3, 4 and 9 of the Code governing.

The question of the equitable distribution of data (and in most circumstances the Committee is speaking of the data and not the medium upon which it is carried) is not a new one to the profession. The rules that applied in the past are certainly the ones that apply at this time to the distribution of the raw data, i.e. the data version of the transcript.

As independent makers of the record, notaries public, officers of the Court, and public officials, reporters are charged with a grave public responsibility. When they violate that charge, they compromise the sanctity of the record. Reporters should be ever mindful of how their actions relate to that responsibility and the impact that those actions will have on their profession.

In prior times, the reporter provided but a single service to the Court, the public and the bar, that of the maker and distributor of the printed record. That is what they continued to do when reporting initially entered the age of computer-aided transcription (CAT). However, as the capabilities of the equipment employed in making and distributing the record became more sophisticated, new opportunities arose for providing the record in different formats.

This process initially began with the creation of simple keyword indexes, where counsel of the parties would submit their lists of "key-words," which the reporter would then feed into the reporter's computer and generate an index showing portions of the transcript that contained those words. While there now are many similar formats and products, it is the key-word index that presents a unique problem, because it is that product that is customized to the demands of the ordering party.

The reporter must make certain that knowledge of the availability of products and services is equally disclosed to all parties. It is grossly unfair to provide one party with a product and not inform the other parties to the action of its availability. To do so diminishes the reporter's standing as an independent maker of the record.

In addition, when producing a keyword index for one party, the list of keywords and/or the keyword index must be treated as confidential and proprietary to the party for whom it was produced and may not otherwise be revealed without order of the Court or other duly constituted authority.

Conclusion

The failure to make all parties aware of the availability of a service or product's being provided to one or more parties, thereby restricting their opportunity to purchase or otherwise obtain such product or service, is a violation of Provisions 1, 2, 3 and 9 of the Code.

The failure to keep confidential the contents of a keyword index or the list of words provided by a party ordering a keyword index, unless otherwise ordered by a Court or other duly constituted authority, is a violation of Provisions 1, 2, 3, 4 and 9 of the Code.

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.