Now, this next scenario has come up several times in my 30-plus years of court reporting. Let’s say that a court reporter goes on a deposition and the witness is sarcastic, argumentative, or just simply awful during the deposition. We’ve all been there! Also assume that the deposition was not videotaped and the transcript does not quite capture this hostility or sarcasm. Could a court reporter provide counsel, upon request, with a statement or affidavit about the witness’ demeanor? Not according to CCP 2025.320. It clearly says that a deposition officer shall not provide to any party or any party’s attorney any service or product consisting of the deposition officer’s notations or comments regarding the demeanor of any witness, attorney or party present at the deposition.
Another issue that has come up quite a bit is when it is appropriate to go off the record. CCP 2025.470 states that a deposition officer may not suspend the taking of testimony without the stipulation of all parties present unless any party attending the deposition, including the deponent, demands that the deposition officer suspend taking the testimony to enable that party or deponent to move for a protective order under Section 2025.420 on the ground that the examination is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses that deponent or party.
So imagine a scenario where the noticing attorney decides for whatever reason that he/she wishes the court reporter to go off the record. However, opposing counsel say, “No, I will not agree to that. Let’s stay on the record.” The court reporter must stay on the record. It does not matter who wants to go off, even the noticing attorney, the reporter must stay on the record. In this instance, however, it would be appropriate for a reporter to go off the record if the deponent or counsel demands to go off the record to move for a protective order. The words “protective order” would require the reporter to go off the record and for the deposition to be suspended.
Next week let’s talk about CCP 2025.540(b) and the use of rough drafts.
Christine Randall, RPR, CSR No. 5598