Advisory Opinion 38
An Attorney Requests a Copy of a Reporter's Backup Audio Media
(Originally written, 2000; Revised, 2006; Revised 2014)
Statement of Facts
The NCRA Board of Directors has requested an opinion from the Committee on Professional Ethics regarding ethics issues involved in the following scenario: While making the official record, a reporter made an audio backup recording of a proceeding for use by the reporter only while making the transcript. During a break in the proceeding, an attorney requests a copy of the reporter’s backup audio media.
It is becoming increasingly common for persons present during the making of an official record to request a copy of the reporter’s backup audio media for their own use. The Committee on Professional Ethics believes that the decision of whether or not to make an audio backup recording of a proceeding is the personal choice of the reporter.
The Committee finds the rationale of the Illinois case, Emmel v. Coca-Cola Bottling Co. of Chicago Inc., 904 F.Supp.723,753, to be dispositive. The U.S. District Court determined that “backup tapes made by court reporters for their own convenience and not otherwise required by 28 U.S.C. 753 are the personal property of the court reporters. There is no public entitlement to these recordings.”
Following this rationale, the Committee concludes that, absent a court order to do so, there is no ethical obligation for a reporter to provide a copy of the backup audio media to any person requesting same or even to disclose to those present that a backup audio recording is being made. A reporter must comply with any applicable state or federal requirement that a reporter preserve such backup audio media once the reporter no longer needs it for use while making the transcript.
Nonetheless, if a reporter elects to give a person a copy of the backup audio media, the following ethical obligations apply:
First, before making the decision to provide all parties with a copy of the backup audio media, the reporter should be cautioned that doing so may cause the reporter to be in violation of Provision No. 4 of the Code which requires that the reporter preserve the confidentiality and ensure the security of the information entrusted to the Member because the backup audio media may contain inadvertent comments, off-the-record discussions, or attorney-client privileged communications that should not be released or disclosed. If a reporter decides to provide copies of the backup audio media, the reporter is obligated to ensure that in doing so, he or she is not disclosing off-the-record discussions or attorney-client privileged communications.
Additionally, if a reporter decides to provide a copy of the backup audio media, the reporter should provide the requesting party with a copy of the media and the reporter should keep the original. This satisfies the reporter’s obligation under Provision No. 4 of the Code to preserve the confidentiality of the information entrusted to a Member because if there is a dispute over the backup or an accusation that it has been altered, the reporter may produce the original to settle the dispute. The only exception to this is if a court orders the reporter to provide the original media. In that case, the reporter must keep a copy.
Second, Provision No. 1 of the Code of Professional Ethics, which states that a Member shall “be fair and impartial toward each participant in all aspects of reported proceedings, and always offer to provide comparable services to all parties in a proceeding,” requires that the reporter offer to provide a copy of the media to all other parties. Failure to do so would be a violation of Code Provision No. 1 and also of Provision No. 9, which requires Members to maintain the integrity of the reporting profession.
The Committee has determined that absent a court order to do so, the NCRA Code of Professional Ethics does not require that a reporter provide a copy of any backup audio media that the reporter uses to make the official transcript of a proceeding. However, Provision No. 1 of the Code requires that if the reporter chooses to give a copy to a requesting party, the reporter must offer to do so for all parties to the proceeding. Provision No. 4 also requires that the reporter maintain the original backup audio media and provide only a copy to any or all requesting parties unless ordered by the court to provide the original media. In that case, the reporter must keep a copy. Finally, the Committee cautions that releasing copies of the media may result in a violation of Provision No. 4 of the Code if the media contains inadvertent, off-the-record or privileged information that should not have been released or disclosed.
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.