WHO’S IN CHARGE OF THIS DEPOSITION?
An attorney has scheduled a deposition. He’s subpoenaed the witness, issued a deposition notice, hired a court reporter, hired a legal videographer, and paid a deposit for court reporting services.
The court reporter swears the witness and, as anticipated, the witness is less than cooperative. His counsel objects to proper questions, becoming increasingly commanding and instructing the court reporter to reflect questionable descriptions of off-the-record activity. In the meantime, the witness argues over questions, drawing instructions to not answer. By this time, the deposing attorney invokes the legal maxim, “I paid for this deposition, and I control what goes on here.” He instructs the court reporter and legal videographer to go off or stay on the record and to cut off the opposing counsel’s microphone. He turns off the air conditioning and removes water from the conference room. And when the attorney demands that the court reporter instruct the witness to answer, all eyes turn to the court reporter. Who is in charge?
The easy answer is that civil rules govern the deposition process. But while the rules offer general guidance on deposition conduct, they’re of limited practical value in the heat of deposition. The rules grant great authority to a judge to punish litigants or attorneys who interfere with deposition questioning, see Fed. R. Civ. P. 30(d)(2), the judge acts in hindsight on the basis of the record created at the deposition.
And when it comes to keeping the record, the court reporter is firmly in charge. Civil rules require that the deposition be taken “before an officer authorized to administer oaths,” Fed. R. Civ. P. 28(a)(1), and that duty is generally assigned to the court reporter. Among other things, the court reporter is authorized and charged to begin and conclude the deposition with a statement of certain facts. Fed. R. Civ. P. 30(b)(5). The court reporter must swear the witness and record the deposition testimony by the means identifies in the deposition notice, either personally or through a person, often a legal videographer, who acts under the court reporter’s direction and in the court reporter’s presence. Fed. R. Civ. P. 30(c)(1). The court reporter must also note all objections raised at the deposition and mark and preserve any exhibits produced at or used in the deposition. Fed. R. Civ. P. 30(c)(2), 30(f)(2). Finally, it is the court reporter who must certify that the record is accurate. Fed. R. Civ. P. (f)(1).
While the court reporter has no authority to command action by any witness, litigant, or attorney, the court reporter maintains sole authority to create and maintain the deposition record.