Providing excerpted portions of the testimony
(Originally written, 1995; Restated, 2003; Revised 2018)
Statement of facts
A court reporter has requested the Committee on Professional Ethics for an advisory opinion regarding the permissibility under NCRA's Code of Professional Ethics of transcribing excerpted portions of testimony for one party to the proceeding. During a recess, an attorney requests the reporter to transcribe an excerpted portion of the testimony and provide the transcription to the attorney. The other party is unaware of this request. Does the reporter have an obligation to inform the other party that the attorney has requested an excerpted portion of the transcript? Must the reporter make that excerpt or similar excerpts available to the other party?
Discussion
It is the Committee's opinion that the impartiality and independence of the reporter, as mandated by Provision No. 1 of the Code, requires that all parties should be notified when any orders are placed. Requests for excerpts require a two-step disclosure process by the reporter in this situation. First, the reporter must notify the requesting attorney at the time of the request that the reporter is obligated to disclose to the other party that (1) the reporter has received a request for an excerpt and (2) the other party has the opportunity to request excerpts, including the same excerpts ordered by the requesting attorney. This means that the reporter will be obligated to reveal the exact excerpts that are being ordered. Second, if the requesting attorney still wishes to obtain an excerpt once that information is disclosed, the reporter must then make these required disclosures to the other party. The other party may then request any excerpts from the reporter. If any excerpts are requested, the above two-step process must be repeated with all parties. When requests for all excerpts have been received and communicated to the parties, the reporter must deliver the same. The Committee believes that this two-step disclosure process preserves the impartiality of the reporter and ensures fairness in the reporting of the proceeding.
This two-step disclosure process applies, but is not limited to, requests for uncertified rough drafts, certified deposition transcripts, excerpted or certified courtroom transcripts and expedited delivery of transcripts.
Conclusion
The Committee on Professional Ethics believes that a reporter should notify all parties when any orders are placed. In addition, when a reporter is requested to transcribe an excerpted portion of testimony for one party to an action, the reporter must engage in a two-part disclosure process to preserve the reporter's impartiality. First, as instructed above, the reporter must notify the requesting attorney of the reporter's obligation to inform the other party that the reporter has received a request for an excerpt and that the reporter must offer the other party the opportunity to order excerpts, including the same excerpts ordered by the requesting attorney. Second, assuming the requesting attorney still wants an excerpt, the reporter must disclose to the other party that a request for an excerpt of the proceeding was made and that such other party has the right to request transcript excerpts that it may require, including those ordered by the requesting attorney. When requests for all excerpts have been received and communicated to the parties, the reporter must deliver the same. Failure to follow these disclosure practices would place the reporter into a situation that would compromise the reporter's impartiality and violate Provision No. 1 of the Code.
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.