Telephone depositions are a common occurrence for many court reporters. Some of the problems associated with telephone depositions - not being able to hear the witness, garbled speech, poor phone connections, and several participants who all sound alike and don't identify themselves - all make an already challenging assignment more difficult.
The majority of states do not have any rules or regulations offering guidelines on telephone depositions. However, for those that do, reporters must generally be in the presence of the witness. If the reporter is not with the witness, a notary must be in his or her presence to administer the oath.
In some states, such as South Carolina and Missouri, an attorney can stipulate a waiver if needed. This does not violate NCRA's code of ethics. Members are required to conform to the accepted practices set forth in Advisory Opinions to the extent that such practices are consistent with their own state and local laws, rules and regulations.
In addition, NCRA Public Advisory Opinion 36 states that if there are no applicable laws, rules, regulations or case law addressing the reporter's obligations, the reporter can report the deposition of a witness over the telephone only if the witness has been sworn in by a duly authorized oathgiver who was in the presence of the witness. However, if applicable federal, state laws, rules, regulations or case law require the administering of an oath in person, it would be a violation of the Code for a reporter to agree to a stipulation that an oath administered to a witness over the telephone has the same force and effect as one administered in person.
The National Notary Association has no specific guidelines regarding the swearing in of a witness over the telephone, but its Code of Ethics requires that the oath be administered in the presence of the witness.
Another common problem involves requests that a reporter include nonverbal communications in the transcript. NCRA Public Advisory Opinion 31 states, "The role of the court reporter in reporting a proceeding is to preserve the spoken word on the record and not to function as a factual witness for one party to the proceeding. When a reporter is intentionally placed in the position of being a factual witness for one party to the proceedings, that reporter may be viewed as an advocate for one party over another."
One situation where inclusion of nonverbal communication might be considered is when the witness is deaf or hard-of-hearing and the questions are being asked through a sign language interpreter. The reporter should request that a statement be made on the record indicating that this is occurring.