"Going On and Off the Record"
(1987; combined with No. 42, 2014)
Statement of facts
Scenario 1: A reporter is engaged by the attorney representing plaintiff to report a deposition. Attorney for the defendant and the witness appear at the designated time. After completing his examination, the hiring attorney states that the deposition is concluded. The defense attorney, wishing to examine the witness, does not agree to its conclusion. The hiring attorney then directs the reporter to go off the record since he is paying for it. The reporter declines to do so and continues to report the examination of the opposing counsel.
Scenario 2: 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. What should the reporter do?
The question presented here in scenario 1 is: Should the reporter have complied with the hiring attorney's request not to continue reporting his opponent's examination? The answer is an emphatic no. It makes no difference who makes the request. Unless all counsel in an examination agree to go off the record, the reporter is duty-bound to continue reporting the proceedings even when the hiring attorney makes the request of the reporter. The reporter must act impartially and professionally in all proceedings that are reported.
The question presented here in scenario 2 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.
It is the Committee's opinion that in Scenario 1 the reporter was acting within the provisions of the Code of Professional Ethics, particularly Provisions 1 and 9, which state that the member shall:
No. 1. Be fair and impartial toward each participant in all aspects of reported proceedings.
No. 9. Maintain the integrity of the reporting profession.
Similarly, in Scenario 2: 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.