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Can anything be done?

On Friday, I took a work comp depo. Mr. Smith booked with ABC agency, who I work with. Mr. Jones is the applicant attorney. Mr. Anderson is the attorney handling the personal injury claim and he has decided to sit in on the depo.

As I do at the end of every depo I take, I ask any "copy" attorney if s/he would like a copy of the depo. So in this case, at the end of the transcript it reads:

THE COURT REPORTER: Mr. Anderson, would you like a copy of today's transcript?
MR. ANDERSON: Yes, I would.
---oOo---
(Whereupon the deposition was concluded at 4:18 p.m.)

Enter controversy:

Mr. Jones tells Mr. Anderson, "I get a copy of the transcript. I'll just give you my copy."

Now I'm mad, because we all know that the attorneys are not supposed to do that. My 0+3 just became 0+2.

I jokingly tell Mr. Jones, "Hey, even if you might decide to do that, you never say that in front of the court reporter, ha, ha, ha."

Mr. Jones, in turn, gets a bit miffed with me and replies, "Well, that's my money out of my client's pocket." He again tells Mr. Anderson he'll give him a copy of his transcript.

1. Actually, it's money out of MY pocket.

2. Mr. Anderson nor his client is paying for the copy, it's a work comp. depo. Mr. Smith is paying for Mr. Anderson's gratis copy.

3. The money wouldn't be coming from Mr. Anderson's client, because Mr. Anderson is not representing the deponent in the personal injury lawsuit.

What would you do in this type of situation?

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Permalink Reply by Sharla Preciado on October 5, 2009 at 20:39

I didn't know what to do when that happened to me either, but here's what I've decided for the future:

I now keep a copy of the code with me to hand to the attorneys who say this. Here in California, it is Cal Gov Code 69954 (2009). I've highlighted subsection (d) which reads, "Any court, party, or person who has purchased a transcript may, without paying a further fee to the reporter, reproduce a copy or portion thereof as an exhibit pursuant to court order or rule, or for internal use, but shall not otherwise provide or sell a copy or copies to any other party or person." (And I've underlined everything from "for internal use" on.) They could still do it, but at least you've put something in their hands that informs them that it's not legal, so they can't claim ignorance, and you'd think they would care about the law, being lawyers and all. :)

I know a reporter who has this printed on a sticker that she puts somewhere on the packaging of her transcripts. I don't bind my own transcripts, so I don't do this, but I would consider asking the agency if they would do so in a case like this.

The only other suggestion I have is to print that transcript on paper that contains a message that only shows up when photocopied. It's available several places, but I know it can be ordered from Stenograph. The paper is very pale blue in color, and when photocopied, the words "Unauthorized Transcript, Do Not Copy, Do Not Distribute" show up all over the page, from top to bottom. Of course, if you are doing the work for an agency, you would have to ask them to use this paper. I would go so far as to tell the agency they can take the cost of the special paper out of my fee. I would only do this when an attorney has made a comment like the one that was made to you. It's too expensive to do all the time. And of course, this doesn't do anything to address the sharing of disks or e-mailed copies.

Since formulating my plan, nobody has said this to me again, but at least now I'm armed and have one agency who has agreed to use the special paper next time it happens.

One other thing: You have the copy order on the record and not the discussion afterwards. I say fill the copy order and bill for it as usual. Your certified transcript with the copy order in it should stand up in small claims court if the attorney refuses to pay. What's he going to do, go to court and tell the judge that after he ordered it, he and the other attorney made an agreement to violate the code?