There's been a lot of talk lately about court reporters ending depositions by Code and refusing to stipulate away the original transcript. We want to tell you why it's happening and how best to handle it.
Basically, Northern and Southern California handle the original transcript differently. In NorCal, everything goes according to the CA Code of Civil Procedure. In SoCal, many attorneys stipulate to relieve a court reporter of his or her duties under the CA Code. Turns out, that stipulation is a big problem. Any transcript that gets challenged in court by opposing counsel can potentially be thrown out by the judge if the deposition ended by the SoCal Stip and not by Code.
If you closely examine the California Code of Civil Procedure, section 2025.550- the part of the Code pertaining here- it clearly states that the original transcript must be protected at all times against loss, destruction or tampering. Did you know: when you enter a stipulation on record relieving a court reporter of his/her duties, by law you cannot have a completed, executed original transcript? You have waived the swearing in of the witness, you have forfeited the right to read & sign, you have eliminated the reporter's ability to certify any copies and you have compromised the integrity of the original transcript. Only the court reporter- the deposition officer presiding over the proceedings- may execute the original transcript and the subsequent certified copies. This requires an active CSR license and a careful execution of the CA Code.
Perhaps you can see where this is leading: a sharp attorney can use this information to one's advantage. Don't like a witness' testimony during a deposition? Is it detrimental to your litigation? Challenge the validity of the transcript. The Southern California Stipulation creates a myriad of procedural issues for the court. If an attorney brings forward a claim of tampering and there is no sealed, original transcript to compare against (because it was stipulated away to opposing counsel via the SoCal Stip), what happens to the discovery? How can the judge make a ruling when you yourself agreed to put the original transcript in the hands of the other party? The simple answer: he/she can't. And when a judge can't make a ruling on something, it usually gets kicked. That's not a situation I want to explain to my client, especially when I just billed them thousands of dollars for that testimony.
On the other hand, if you go by Code, that original transcript cannot be challenged. You have followed the Code to the letter of the law and your discovery is completely protected. The original transcript is no longer subject to loss, destruction and tampering, and is protected from loss due to procedural issues. This is exactly what the statute intended.
One must consider the long term effects that can result from a stipulation. If a judge presiding over the case believes that CCP 2025.550 has been violated, that judge has the right to dismiss that testimony and to toss out that transcript completely. If any of that testimony was critical to the case, or considered an important element of the case, it would invariably affect the attorney/client relationship, which leads to the worst thing that could happen in this situation: the loss of trust between a client and their attorney.
Here's what you do to take control and to get in front of the situation: take control of the deposition from the start and inform the reporter that your deposition must be handled by Code. It's the best practice to protect your client from potential liabilities caused by the SoCal Stip, and it's the easiest solution for all parties involved: you, your client, the reporter and the reporting agency. It puts everyone on the same page and creates a legally sound, professionally executed, original transcript.
If there is ever a charge of tampering or mishandling of the evidence, you now have a legal foundation to protect your discovery by Code.
Jason D. Buktenica
Maverick Reporting, Inc.
We have trained all of our outstanding court reporting staff statewide to follow the Code in an effort to protect your discovery and your client.
Contact us today for all of your deposition needs and know that your discovery will always hold up in court.