Advisory Opinion 16
Determining the order of exhibit delivery and/or submitting exhibits to third parties to distribute (1994)
Statement of Facts
The Board of Directors 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 same facts described in Advisory Opinion No. 15, with the exception that the Member submits exhibits to 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 action) before all parties to the action and their attorneys have an opportunity to read and review them.
This Advisory Opinion discusses the question whether it is proper for a Member under the facts similar to those posed in Advisory Opinion No. 15 to submit exhibits to a deposition transcript to third parties (i.e., the management consulting firm) before all the parties to the action and their counsel have had an opportunity to read and review them. For the same reasons as set forth in Advisory Opinion No. 15, 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 exhibits in the possible manner set forth above.
The Committee emphasizes that its conclusion in Advisory Opinion No. 15 applies not only to the transmission of the entire deposition transcript and a diskette thereof, but also to any portion of the deposition transcript, including one or more transcript exhibits. Thus, delivery of transcript exhibits to a third party (namely, the management consulting firm who, the Committee assumes, has a relationship with one of the parties to the litigation) before all parties to the action and their counsel have a chance to read and review the exhibits would essentially favor one party to the action over the others. Code Provisions 1, 2, 3 and 9. Distribution of exhibits or portions of a transcript must be made in an equitable fashion at the same time to all parties to the action. A contrary practice not only gives the appearance of a conflict of interest and suggests impropriety, but also undermines the reporter's obligation of impartiality toward each litigant in all aspects of the reporting of depositions and compromises the reporter's role as a neutral officer of the court. Code Provisions 1, 2, 3, and 9.
Furthermore, if the deposition exhibits are delivered to the management consulting firm before all the parties and their counsel have a chance to read and review them, the Member may be undermining the security of such information, as mandated by Provision No. 4 of the Code. Proper and contemporaneous distribution to all parties to an action and their attorneys of transcript exhibits helps to ensure the security of the information entrusted to the Member. Controlled distribution also helps maintain the confidentiality of such information.
Finally, as similarly noted in Advisory Opinion No. 15, the Committee points out that transcript and exhibit 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. To the extent that the Committee's views in this Advisory Opinion are not inconsistent with such federal, state or local rules, laws rules and regula-tions, a Member shall adhere to the principles set forth herein.
Under the same facts posed by Advisory Opinion No. 15, with the sole exception that the Member submits exhibits to 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 action) before all parties to the action and their attorneys have an opportunity to read and review them, it is the Committee's opinion that it is a violation of Provisions 1, 2, 3, 4 and 9 of the Code of Professional Ethics for a Member to submit transcript exhibits (and/or portions of the 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 submission of the transcript exhibits and/or other portions of the transcript 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 transcript exhibits and/or other transcript portions 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.