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35
Advocate 28 (July 2008)
Deposition Stipulations
or Do You Know What
You’re Giving Up?
I was speeding
through my
standard
post-deposition
stipulation one
day four or five
years back,
relieving the
court reporter
of her duties
under the Code,
etc., when the
defense lawyer
chimed in with a
slight
modification.
“I’ll only agree
to relieve the
court reporter
of her
obligation to
maintain the
original,” he
said,
“otherwise, so
agreed.”
Once we were off
the record, he
told me in a
friendly manner,
“I don’t think
you know what
you’re agreeing
to when you
relieve the
court reporters
of all their
duties under the
Code (or the
FRCP, if you’re
in federal
court).
They’ve got all
kinds of
obligations,
being officers
of the Court and
all that.”
The court
reporter nodded
in agreement and
I made a mental
note to look
into what he was
saying at the
earliest
opportunity.
I immediately
modified my
standard stip,
which seemed
like a good
idea. But
it took me until
today to really
poke around and
see what a court
reporter’s
Code-given
duties truly
entail.
Typical
plaintiff
lawyer, huh?
Court reporters
are referred to
as “deposition
officers” in the
Code of Civil
Procedure, where
the various
rules and
regulations
governing depos
starts at
section
2025.010.
The Code is rife
with duties and
obligations a
court reporter
must follow in
carrying out
their sacred
task of
capturing,
transcribing and
preserving
testimony.
It covers things
like potential
conflicts of
interest (sec.
2025.320(a) “the
officer shall
not be
financially
interested in
the action and
shall not be a
relative or
employee of any
attorney of the
parties, or of
any of the
parties.”),
swearing the
witness (sec.
2025.330(a) “The
deposition
office shall put
the deponent
under oath or
affirmation.”)
and offering any
available
additional
services to all
parties in an
evenhanded
manner (sec.
2025.340(d) “All
services and
products offered
or provided
shall be made
available at the
same time to all
parties or their
attorneys.”)
While the court
reporters I’ve
worked with the
in the past have
been by and
large,
excellent,
professionals,
section
2025.460(b)
recognizes that
some might fall
below the
standard and
puts the burden
of policing
renegades on the
attorneys.
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Errors
and
irregularities
of
any
kind
occurring
at
the
oral
examination
that
might
be
cured
if
promptly
presented
are
waived
unless
a
specific
objection
to
them
is
timely
made
during
the
deposition.
These
errors
and
irregularities
include,
but
are
not
limited
to,
those
relating
to
the
manner
of
taking
the
deposition,
to
the
oath
or
affirmation
administered,
[or]
to
the
conduct
of a
. .
.
deposition
officer
. .
. .
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Section
2025.510(a)
commands that
all deposition
testimony
recorded by
stenographic
means must be
transcribed,
unless the
parties agree
otherwise.
In other words,
if you stipulate
to relieve the
court reporter
of all
Code-imposed
duties, then he
or she is free
to pick and
choose what, if
any, testimony
winds up in the
transcript.
Sec. 2025.510(c)
provides that
any party can
buy a copy of
the transcript,
even if the
opposing party
hired the court
reporter.
Definitely don’t
want to waive
that one.
Sec. 2025.510(e)
requires
reporters to
hold onto their
notes for not
less than one
year where there
is a transcript
and not less
than eight years
where there is
no transcript.
That’s the kind
of safety net
I’d just as soon
keep in place as
well.
Section 2025.520
covers the all
important
reading,
correcting and
signing of the
deposition
transcript,
which is usually
covered in the
standard
stipulation, so
no big deal
there.
Section
2025.550(a) and
(b) cover
custody of the
original after
it is certified
by the court
reporter,
including the
duty of the
attorney to
maintain custody
until six months
after the final
disposition of
the action, just
in case you
didn’t know that
one.
So, with this
wealth of
knowledge in
mind, I offer
the following
stipulation:
“That we relieve
the court
reporter of her
(or his)
obligation to
maintain the
original under
the Code (or the
federal rules).
That the
original
transcript be
delivered to the
witness’ counsel
for delivery to
the witness and
that within 30
days after
counsel receives
that transcript,
she deliver it
to the witness
for correction
and signature of
under penalty of
perjury and
advise all
parties in this
case as to any
changes made and
whether or not
the transcript
is signed.
In the event the
transcript is
not signed under
penalty of
perjury, or the
time constraints
aren’t met, or
the original is
not available
for any reason,
then an
unsigned,
certified copy
shall have the
same force and
effect as a
signed original
for any
purpose.”
So stipulated.
35 Advocate 28
(July 2008)
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