Don’t Let That Good Testimony Go to Waste: Tips for Ensuring That Deposition Transcripts are Properly Maintained
Preparing for and conducting or defending a deposition can be intense. Once the deposition is over, it’s easy to overlook what happens next. But understanding the procedures for reviewing and maintaining the transcript are essential to avoiding questions of authenticity when it’s time to use the deposition transcript as evidence. Agreeing to “the usual stipulations” without clearly defining them or being too casual about how a transcript is prepared, reviewed, and maintained could make otherwise helpful testimony useless.
In federal court, a request to review the deposition transcript must be made before the deposition has concluded.[1] In contrast, Washington’s civil rules require that the transcript be submitted to the witness for examination unless review is waived by the parties and the witness.[2] Thus, a lawyer used to defending depositions under Washington’s or similar state court rules could inadvertently waive the deponent’s right to review (or for the lawyer taking the deposition, the right to require review of) the transcript if the lawyer concludes the deposition mistakenly assuming that the transcript will be made available automatically.
If a party requests review, the court reporter will notify the deponent when the transcript is “available” (federal)[3] or by “submitt[ing]” it to the witness (Washington).[4] The deponent then has 30 days to review the transcript and make any changes he believes are necessary.[5] The federal rules require that “changes in form or substance” be accompanied by a signed statement giving the reasons for the changes.[6] Under Washington rules, the witness must sign the transcript—with or without changes—and is deemed to have signed it as-is if she doesn’t.[7]
While court-reporter practices may vary, deponents should not expect to receive a transcript enclosed with the court reporter’s notice. Though neither the federal nor the Washington rule defines what it means to make “available” or “submit” a transcript, courts have dismissed arguments that the reporter or opposing counsel has an obligation to send the deponent the transcript for review free of charge.[8] Rather, the court reporter’s obligations are satisfied by advising the deponent of the court reporter’s office hours during which the deponent can review the transcript.[9] If making arrangements to review the deponent’s transcript at the court reporter’s office is infeasible, the deponent generally must order a copy of the transcript.
There are several reasons for such a rule. First, the court reporter has a financial incentive to maintain control over the original so that parties or the deponent in fact pay the “reasonable charges” the court reporter is allowed to charge for a copy of the transcript.[10]
More important, at least from the litigants’ perspective, is the need to preserve the authenticity of the original transcript. Once the 30-day review period has expired, the court reporter must certify that the transcript is accurate.[11] The certificate is attached to the original deposition, which is then sealed in an envelope.[12] Contentious reporters will not certify the accuracy of the transcript unless they have maintained control over the unsealed original at all times.
Finally, under the federal rules, the attorney who takes a deposition is responsible for protecting the transcript against “loss, destruction, tampering, or deterioration.”[13] Insisting that the original transcript remain with the court reporter or sealed and in the control of the attorney taking the deposition helps ensure that these obligations are or can be satisfied.
A deposition transcript is more than a record: it is a tool. All the hard work that goes into getting good deposition testimony will be for naught if the transcript cannot be used in court because it is not certified or raises chain-of-custody concerns. For these reasons, the work does not end at “I have no further questions.”
–Sarah Gohmann Bigelow
[8] Parkland Venture, LLC v. City of Muskego, 270 F.R.D. 439 (E.D. Wis. 2010); Easterday v. S. Columbia Basin Irr. Dist., 49 Wn. App. 746, 753 (1987).
[9] Id. at 441. In contrast to Parkland, the Washington court in Easterday did carve out a narrow exception for “exigent circumstances” such as a confining illness. 49 Wn. App. at 753.
Related Posts
