Advisory Opinion 15
Determining the order of transcript delivery and/or submitting transcripts to third parties to distribute (1993)
Statement of Facts
An attorney has asked whether, in the opinion of the Committee on Professional Ethics, a member of the National Court Reporters Association (Member) violates the Association's Code of Professional Ethics (Code) under the circumstances described below. The Committee assumes certain facts for the purpose of rendering this advisory opinion.
A transcribing service, which is part of a freelance reporting agency, is working in conjunction with a large management consulting firm. The management consulting firm is offering the reporting of depositions as part of a package of services being offered to its national and international corporate clients. The transcribing service arranges for the Member to perform the actual reporting services. The Member submits the deposition transcript and a diskette of the deposition transcript to the transcribing service, and possibly to the management consulting firm and its corporate client (which is one of the parties to the litigation) before all parties to the litigation and their attorneys have an opportunity to read and review them. The transcribing service is then responsible for delivering the transcript and diskette to all the attorneys for the parties.
The attorney's letter also indicates that a local videograph firm, with no expertise in court reporting, is offering to conduct depositions, but again possibly supplies transcripts and diskettes of such transcripts to third parties prior to their delivery to all parties to the action and their counsel.
The attorney's letter raises the question whether, under the facts that have been posed, it is proper for a Member to submit the deposition transcript and a diskette of the deposition transcript to third parties (i.e., the management consulting firm) before all the parties and their counsel have had an opportunity to read and review them. The Committee believes that Provisions 1, 2, 3, 4 and 9 of the Code, which are designed to maintain the reporter's neutrality and independence, and preserve the confidentiality and ensure the security of the reported information, prohibit the distribution of the transcript and diskette in the possible manner set forth above.
Provision 1 of the Code requires the Member to be fair and impartial toward each participant in all aspects of the reported proceedings. Provision 2 requires Members to be alert to situations that present a conflict of interest or that may give the appearance of a conflict of interest. Provision 3 requires the Member to guard against not only the fact but also the appearance of impropriety. Provision 9 requires the Member to maintain the integrity of the reporting profession. These four provisions, when taken together, are designed to uphold and maintain the status of the court reporter as a neutral and impartial "officer of the court." Members must always be wary of and avoid situations that create or give the appearance of creating partiality or favoritism toward one party to the action over the others.
The attorney's letter indicates that the deposition transcripts and diskettes are possibly being delivered to the management consulting firm and one of the parties (the management consulting firm's corporate client) before it is given to all the parties to the action and their counsel. Delivery of a transcript and diskette to a third party (namely, the management consulting firm who, the Committee assumes, has a relationship with one of the parties) before all parties to the action and their counsel have a chance to read and review the transcript and diskette, would essentially favor one party to the action over the others. Distribution of the transcript and the diskette must be made in an equitable fashion at the same time to all parties to the action. The practice questioned by the attorney in his letter not only would give the appearance of a conflict of interest and suggest impropriety, but also it would undermine the reporter's obligation of impartiality toward each litigant in all aspects of the reporting of such depositions and would compromise the reporter's role as a neutral officer of the court. The Member who makes the official record also must not act or appear to serve as an advocate for or to favor one party over another.
Furthermore, Provision 4 of the Code requires the Member to preserve the confidentiality and ensure the security of information, oral or written, entrusted to the Member by any of the parties in a proceeding. If the deposition transcript and diskettes are delivered to the management consulting firm before all parties and their counsel have a chance to read and review them, the Member would be undermining the security of any such information. This is true regardless of whether or not the management consulting firm has any kind of relationship, affiliation or association to a party to the action. Members should always be mindful of how their actions relate to the trustworthiness of the record that they have produced. As the attorney's letter cautions, diskettes are easily edited. Transcripts are easily reprinted. Proper and contemporaneous distribution to all parties to an action and their attorneys of such transcripts and diskettes helps to ensure the security of the informa-tion reported. Moreover, controlled distribution to all parties to the action and their attorneys helps to maintain the confidentiality of the information produced.
In this regard, the Committee notes that transcript and diskette custody, control, confidentiality and transcript certification requirements are often governed by federal, state and local statutes; the certified shorthand reporter statutes and rules of the various states; and/or the rules of the federal, state and local courts or administrative departments. These requirements must be satisfied by the Member both in connection with providing the transcript and diskette to the transcribing service as well as in making sure that they are not provided to the management consulting firm before all the parties to the proceeding and their counsel. To the extent that the Committee's views in this advisory opinion are not inconsistent with such federal, state or local laws, rules and regulations, a Member should also adhere to the principles set forth herein.
Except to the extent mandated otherwise by federal, state or local laws, rules or regulations, Members should, regardless of whether they operate through a freelance agency, a local videograph firm or otherwise, make sure that they comply with all applicable requirements with respect to custody, control, confidentiality and transcript certifications; and that transcripts and diskettes are not provided to third parties (in this case, the management consulting firm) prior to the initial, contemporaneous distribution of such transcripts and diskettes to all the parties to the action and their counsel.
Under the facts posed by the attorney's letter, and except to the extent mandated otherwise by federal, state or local laws, rules or regulations, it is the opinion of the Commit-tee that it is a violation of Provisions 1, 2, 3, 4 and 9 of the Code of Professional Ethics for a Member to submit a deposition transcript and a diskette of the deposition transcript to third parties, such as a management consulting firm that may have a special relationship with, or be associated or affiliated with, one or more of the parties to the litigation, prior to the submission of the transcript and diskette to all parties to the proceeding and their counsel. A Member must also satisfy all federal, state and local requirements, such as those relating to custody, control, confidentiality and transcript certification, in connection with the delivery of a deposition transcript and a diskette to a separate transcribing service that may have originally arranged for the deposition to be taken.
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.