"Go off the record." "No, stay on the record!!"

[Kelli Combs (admin)]

I had this issue today.  Thank goodness it doesn't happen all that frequently.  The attorneys were fighting about going on the record or us going off.  The opposing counsel demanded of the videographer and myself to go off the record. 

The videographer said, "We need agreement of both counsel to go off the record."  The attorney proceeded to threaten both of us with sanctions.  Then he looked at me and said, "Are you going to go off the record?"  I said, "No."   He was beyond pissed.  He told both myself and the videographer he's seeking sanctions against both of us.  I wanted to say, "Well, good luck with that."

I really hate it when attorneys put us in this situation. 

For all you new reporters out there in California, you do not go off the record unless you have agreement from both counsel.  Remember that.  Do not let these attorneys threaten and intimidate you.  

 

 

[Kelli Combs (admin)]

California Code of Civil Procedure 2025.470 would apply as far as the court 

reporter is concerned. This section states that the deposition officer may not suspend the 

taking of testimony without the stipulation of all parties present unless a party demands the 

deposition be suspended in order for that party to move for a protective order. Best practice 

is always to remain on the record as there is a remedy in the form of a court order for 

testimony to be stricken, but there is no remedy for recapturing testimony that was not reported.

 

 

[Chuck Motter]

How about this one: I am in a contentious video deposition. Taking attorney and defense attorney have a long history. They hate one another. During the deposition, both attorneys agree to go off the record to discuss a matter. They get in a fight. Taking attorney says "Let's go back on the record." Defense attorney says, "No, I am not agreeing to go back on the record." Taking attorney says, "I don't care if you agree or not, we are going back on the record." Videographer announces we are back on the record, taking attorney resumes questioning, I resume writing and we continue until lunch. After taking attorney leaves for lunch, defense attorney REAMS me for going back on the record. I was dumbfounded. I've never been in the position of defending going back ON THE RECORD. I'd be interested in your opinion about this.

[Marge Teilhaber (TILE hobber)]

I think it's the same exact thing in reverse as lack of agreement to go off.  If one lawyer, particularly the defending lawyer but it's irrelevant I think, is going to obstruct going back on the record, then, again the same thing, we're no judge.  We take it down and it can always be stricken later by the judge.  

However, I could be wrong here.  Let's get a definitive answer.  This has never happened to me but it sure could.

[Kelli Combs (admin)]

I agree with marge; I don't see that there is a difference in the situation.  You did the right thing in my opinion.

[tami carlson]

I could be wrong too, but I thought there had to be agreement to go on or to go off.

And as far as reaming you for making him go back on the record, he could have easily instructed the witness not to answer until he was ready to go back on the record, which would result in no record, which is probably why we never see this situation.

"But, Your Honor, the court reporter made me do it."

[Elsa Jorgensen]

I think it's the same thing in reverse, Chuck.  I've had a couple of times where one attorney wants to go on, and I do.  I used to carry the COPE or rule about it, but I don't have it in front of me.

[Dean Morris]

Agree with Marge, and others.  Carrying the rule to produce is helpful.

[M&M Court Reporters, Inc.]

From what I am reading under CCP 2025.470, the deposition officer can only suspend the taking of testimony if a party or the witness demands suspension to seek a protective order. 

Not too long ago we had a situation where the noticing attorney requested suspension to seek a protective order under Section 2025.420.  After checking with the CSR Board, we were advised that the reporter was to still remain on the record.  If the witness was asked a question, she was to advise counsel that she could not take the witness testimony, but could continue to report the proceedings. She wound-up reporting about an hour’s worth of argument.

[Chuck Motter]

Thanks to everyone who gave their opinion.

I have now gone to the NCRA website and there are two COPE opinions that bear on this:  Advisory Opinion 6 "'Off the record' must be agreed to (1987)"; and Advisory Opinion 42 "When does the reporter go on the record? (2004)"

In the former, the conclusion is, in part, "Unless all counsel in an examination agree to go off the record, the reporter is duty-bound to continue reporting the proceedings...."

In the latter, the conclusion is, in part, "...if the parties are in disagreement about whether to go on the record, the reporter must go on the record in order to preserve the testimony so that a judge may rule on its admissibility at a later date."

I've now printed these off and will carry them in my bag so that the next time I face this attorney who challenged me, I'll have some backup.

[Marge Teilhaber (TILE hobber)]

Great, Chuck.  Thanks.  I've added this info to a file I keep in Catalyst.  I look forward to needing it someday!

[Cynthia Dunbar]

This is exactly what I've been told, but I like that you have found it officially.  I'll probably follow your lead and print them out myself!

[Cynthia Dunbar]

The best one I've heard is "I HIRED YOU!!!"  And I said, "Yeah, to do my job.  I can't go off without agreement."  I got a heartfelt apology at the break, thankfully.  But I was the scapegoat/whipping boy in that moment.