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Advisory Opinions

Advisory Opinion 42

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When does the reporter go on the record? (2004)

Statement of Facts

A reporter is engaged by an attorney representing the defendant to report a deposition. Both attorneys arrived early to the deposition and begin to converse prior to the court reporter's arrival. A heated discussion relevant to the litigation between the attorneys ensues. When the reporter arrives to the deposition, the defendant's attorney requests the reporter to go on the record and the plaintiff's attorney requests the reporter not to go on the record.

Discussion

The question presented here is: When does the reporter go on the record?

The Committee believes that if there is a disagreement between counsel about whether to go on the record, the reporter has an obligation to go on the record immediately to ensure the security of the information provided to the reporter is preserved. Prior to reporting, the court reporter shall advise the parties that the reporter must report what is said as part of the record until all parties agree to go off the record. Provision No. 4 of the Code requires a reporter to ensure the security of the information entrusted to the reporter by any party to the proceeding. If the reporter does not take testimony at that time, it cannot be recreated and will be lost.

Provision No. 1 of the Code necessitates that a reporter must be fair and impartial toward each participant in a reported proceeding. If the reporter fails to go on the record to preserve the testimony, the reporter may inappropriately affect the outcome to the litigation. It is the Committee's opinion that the reporter must be impartial and preserve the testimony provided so that a judge can, at a later date, rule on its admissibility.

Conclusion

Provision No. 4 requires a reporter to ensure the security of the information entrusted to the reporter by a party to the proceeding. Provision No. 1 necessitates that a reporter treat all parties to the proceeding fairly and impartially. Therefore, if the parties are in disagreement about whether to go on the record, the reporter must go on the record in order to preserve the testimony so that a judge may rule on its admissibility at a later date.


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.