Much like the rest of the legal industry, advancements in technology continue to transform court reporting. In recent years, digital reporting and other capture methods have joined traditional stenographic court reporting in the modern lawyer’s legal toolbox for accurately documenting testimony at depositions in court or administrative proceedings.
Despite their usefulness, digital reporting and alternative capture methods still face some challenges with admissibility and proper use. Let’s look at why alternative capture methods, most notably digital reporting, will continue to increase in frequency, why they matter, and why you should be familiar with them. We’ll also address how attorneys should take advantage of digital, non-stenographic recording methods.
The Growth of and Need for Digital Reporting
Certified stenographic reporters have long played a critical role in litigation and other aspects of legal practice. However, far fewer CSRs are available today than in the past. The shortage of CSRs is expected to worsen over time, as the current generation of stenographic court reporters are approaching retirement or winding down their careers at a much faster pace than they are being replaced by new entrants to the field. Due to technological advancements, few individuals in recent years have entered the profession, and as a result, steno court reporting schools reportedly have been closing around the country.
A combination of a decrease in supply and developments in technology has driven the adoption of alternative capture methods—most notably digital reporting—which have increased in usage in recent years and are certain to continue to grow.
Today’s digital reporting solutions involve the use of high-quality and sophisticated recording equipment to capture the spoken word. Each individual at the deposition is wired with a microphone, and each voice is captured on a separate channel, resulting in high-fidelity audio. The record is then subsequently transcribed by a qualified professional. In addition to setting up and monitoring the technical equipment, the digital reporter is also a trained professional who is authorized to administer oaths in the particular state, swear in the witness, mark and handle exhibits, and perform the same functions as a traditional stenographer. Digital reporting is a great fit for simple proceedings and depositions.
Digital reporting and alternative capture methods are not meant to replace CSRs—indeed, these highly skilled professionals continue to play a valuable role in the legal industry. Digital reporting and alternative capture methods should instead be viewed as a more available resource that complements the important work performed by CSRs. CSRs are still the best option for more complex depositions and proceedings. The availability of digital court reporters ensures depositions can be taken when a witness is available or in a remote location, even if a CSR is not available for that day or at that location. Further, given the shortage of CSRs, we can expect the cost of stenographic reporting to rise, while the cost of digital reporting should remain relatively stable.
The following scenario is a prime example of the benefits of using digital reporting and alternative capture methods. Your client’s executive is scheduled to be deposed on a particular date, a week before the end of the discovery period. Just before that date, your client’s executive has an unanticipated scheduling conflict and has to travel out of the country. She can, however, be available for the deposition in only two days. You contact all parties, and they are all agreeable to the newly proposed date, even on short notice. You contact your court reporting company, and it informs you that no CSRs are available on that particular date, either because it’s a holiday or all available reporters in your area have already been booked. What do you do?
In the past, many attorneys would assume they are out of luck. Today, however, you may be offered an option to have the deposition taken with digital reporting. In this way, even when traditional reporting methods are not available, the alternative capture method allows you to take the deposition on the date the witness is available and obtain a transcript of the testimony in a reliable and convenient manner.
State Differences in Digital Reporting and Alternative Capture Methods
Not all states treat digital reporting and alternative capture methods the same way. In certain states, digital reporting and alternative capture methods are authorized, meaning that those states’ procedural rules expressly allow for digital transcription methods in the state rules and/or statutes. For example, Illinois Supreme Court Rule 206(f) expressly authorizes the use of alternative capture methods in lieu of stenographic reporting, requiring deposition testimony to “be taken stenographically, by sound-recording device, by audio-visual recording device, or by any combination of all three.”
In other states, digital reporting and alternative capture methods are permitted, meaning that those particular state rules do not expressly list digital recording as a capture method, but allow for the parties to stipulate to record a deposition by non-stenographic means. For example, Tennessee Rule of Civil Procedure 30.02(4)(A) reads: “The parties may stipulate in writing or the court may upon motion order that the testimony at a deposition be recorded by other than stenographic means, in which event the stipulation or order shall designate the manner of recording, preserving, and filing the deposition.”
Digital reporting and alternative capture methods do not appear to significantly impact any read-and-sign preferences or requirements; therefore, a witness should always have the opportunity to review any transcript, provide an errata sheet and sign the transcript, if so desired by the witness or any party.
Suggestions for Effectively Using Digital Reporting and Alternative Capture Methods
Most lawyers, particularly those who handle complex litigation matters, work on matters throughout the country. State-specific differences can lead to potential admissibility issues. The parties to a deposition should always confirm in a written stipulation or by a stipulation on the record at the deposition their agreement to use any non-stenographic reporting method, ideally citing the applicable statute, court rule, and/or rule of civil procedure.
In states where digital recording is merely permitted (i.e., not expressly authorized by the statute), it is best to include clear language in the deposition notice and a written or a recorded stipulation regarding its use. This will give the parties maximum protection against any technical argument that the deposition testimony is inadmissible.
We suggest language similar to the following be included in the deposition notices to ensure that all parties are aware of the intent or the possibility to digitally record the deposition:
Please take notice that, pursuant to the applicable [State] procedural rules, [Party] will take the deposition of [Witness] beginning at [Time], [Date], at [Location]. In accordance with such procedural rules, the deposition may be recorded by non-stenographic means, utilizing digital audio equipment or another alternative method of capture. [If applicable: “This proceeding will also be separately recorded via video technology.”] The testimony will be recorded by an official authorized to administer oaths in the State of [State]. The certified transcript of this deposition proceeding is intended for all uses permitted under applicable procedural rules.
The above language is merely a suggestion. To ensure compliance with state-specific requirements, you should always consult the procedural and evidentiary rules and laws of your jurisdiction before proceeding.
Focus on What Matters
With all the noise surrounding technological advancements and the evolution of the capture and transcription process, it is easy to lose sight of the deposition services that every lawyer should insist upon when using court reporting companies and the professionals they deploy to provide accurate and reliable capture of deposition testimony. The provider should be expected to:
- Supply a professional who can officiate in accordance with governing court rules and laws.
- Assign a professional who is trained in marking and handling exhibits.
- Use state-of-the-art recording equipment that offers a recording/capture process that is reliable and ensures high-fidelity capture of all on-record statements with backup in case one machine fails.
- Offer on and off record management.
- Supply upon request (or furnish if required by court rule or law) an accurate transcription of the deposition.
- Assure the users that the system and procedures used to record, transmit and transcribe the record are highly secure so that confidentiality is maintained throughout the process.
The Need for Updated Legislation and Uniformity among States
As technology continues to advance and alternative capture methods become more mainstream, all states should adopt court rules and laws that authorize (and not merely permit) digital reporting of depositions, to be accompanied by a written transcript of the testimony. States that have yet to do so need to look no further than following the language in Rule 30(b) of the Federal Rules of Civil Procedure, which expressly allows for digital recording and reads in relevant part:
(3) Method of Recording.
(A) Method Stated in the Notice. The party who notices the deposition must state in the notice the method for recording the testimony. Unless the court orders otherwise, testimony may be recorded by audio, audiovisual, or stenographic means. The noticing party bears the recording costs. Any party may arrange to transcribe a deposition.
(B) Additional Method. With prior notice to the deponent and other parties, any party may designate another method for recording the testimony in addition to that specified in the original notice. That party bears the expense of the additional record or transcript unless the court orders otherwise.
Adopting similar language will also create uniformity and allow attorneys to take advantage of digital reporting and similar technological innovations.
The Bottom Line
The court reporter shortage is only going to get worse. While CSRs may be the preferred method for recording deposition testimony, courts and attorneys will continue to turn to digital reporting solutions.
Digital reporting has been used in federal courts and has peacefully coexisted with traditional court reporters in several states for many years. When offered by a reputable court reporting firm, digital reporting is an accurate and effective alternative to stenography, especially for simple proceedings.
Attorneys can effectively ensure the admissibility of evidence acquired in a deposition conducted by digital reporting and other permissible alternative capture methods. As noted above, we recommend that the party taking the deposition use clear language in the deposition notice and secure a written or recorded stipulation regarding its use, using the language suggested above as a guide.
About the Authors
Richard Reibstein (left) heads Locke Lord LLP’s labor and employment practice in New York and is co-head of the firm’s Independent Contractor Misclassification and Compliance group. Christopher Fontenelli (right) is an associate at Locke Lord LLP focusing on complex commercial litigation and labor and employment law.