I have a Rules question, don't know if California or Texas

[Kelli Combs (admin)]

I was on this job this week and it's a federal case out of Texas, which they get seven hours on the record

Anyway, the questioning attorney said to go off the record for the witness to read a portion of a exhibit that was marked.  The defending attorney said she did not want to go off the record because she wanted the time to count against the seven hours.

They proceeded to get in a big fight on the record, and then the questioning attorney demanded pretty much I go off the record.  I told her I cannot go off the record unless I have agreement from both counsel.  She said that's not how it works in Texas and this is a Texas case.

 I wanted to say, "But you're in California now and using a California certified reporter."  I didn't say anything and the witness was done reviewing the doc and we went on from there.

I don't think this attorney is correct, but does anyone know if that is correct; I need to ignore all other counsel and go off the record if she instructs me to?   Very uncomfortable situation to be in.  I just hate that.

[Kyung]

In this case, you'd go by Federal rules. 

And under Federal rules

(3) Motion to Terminate or Limit.

(A) Grounds. At any time during a deposition, the deponent or a party may move to terminate or limit it on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. The motion may be filed in the court where the action is pending or the deposition is being taken. If the objecting deponent or party so demands, the deposition must be suspended for the time necessary to obtain an order.

(B) Order. The court may order that the deposition be terminated or may limit its scope and manner as provided in Rule 26(c). If terminated, the deposition may be resumed only by order of the court where the action is pending.

So you could say to the attorney, we can go off the record so you can contact the court to get a motion.  But if we go off now without agreement from both parties to go off the record, then you  will need a court order to go back on the record.

I'm pretty sure

(A) they will be shocked that you know the rules and

(B) they will not want to harass the judge and

(C) it will make them stop and take notice.

At which point, they will probably either agree to go off or get the order.

[Kyung]

(3) Motion to Terminate or Limit.

(A) Grounds. At any time during a deposition, the deponent or a party may move to terminate or limit it on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. The motion may be filed in the court where the action is pending or the deposition is being taken. If the objecting deponent or party so demands, the deposition must be suspended for the time necessary to obtain an order.

(B) Order. The court may order that the deposition be terminated or may limit its scope and manner as provided in Rule 26(c). If terminated, the deposition may be resumed only by order of the court where the action is pending.

So if you're going by federal rules, then you can go off the record, but you'll need a court order to go back on.

If you tell the attorneys that, then they will probably be impressed you know the rules and secondly, won't want to go to the trouble of getting a court order.  It might make them behave.  Then again, maybe not.

[Kelli Combs (admin)]

I think I may actually print these also and carry them with me, study them, and use what's here.  I don't think they wanted to go to that much trouble.

  If I did go off the record and then refuse to go back on without a court order, I can see the attorneys getting pissed off and calling my office. This could backfire on me.   I'm just saying.....

Thanks, Kyung, for taking the time to post this info.  Very helpful.

[Rosalie DeLeonardis]

We are all so afraid to go by the rules that govern us as reporters for fear of what the agency will say just to keep a client (I'm talking in general, just not with your case, Kelli).  I agree with the way you handled it, though, by not going off until all agreed.  I also will print this out for future reference, but I rarely do federal cases.

 

[Kyung]

I doubt they'd really go that far.  This is just a way for them to agree to go off record. 

[Kelli Combs (admin)]

I understand these are California rules, but since this case was filed in Texas, I'm wondering if I was supposed to go by Texas rules.  Anyone know that?  Seems since I'm only licensed in California, I shouldn't have to be concerned with Texas rules since I don't practice there but I'm not sure how that works with federal cases.

[Kyung]

I think for the most part, Texas follows federal rules.  At least that's the feeling I get from most attorneys from Texas.

And it doesn't matter if it's filed in Texas if it's a federal case.  Federal cases usually go by federal rules. 

It's not a Texas case, it's a federal case that happens to be filed in the federal court in whatever district it's filed in in Texas..

[Kelli Combs (admin)]

That makes complete sense.  I don't know then why the one attorney kept throwing out this case is filed in Texas and they are going by Texas rules.  That's what threw me.

[Depo Dynamics, LLC]

If it is a Federal case, then Federal Rules apply in any state.

 

[Diane Richer]

Texas Rules for Timekeeping at Depositions:  Basically the court reporter does not include "protracted lapses, such as when a witness is reviewing a stack of documents. But time would include ordinary pauses by the interrogator or the witness."    The wording can be found in the PDF file at the link below.  The file is named "Uniform Format Manual (New)" for Court Reporters in Texas.  

http://www.crcb.state.tx.us/ufm.asp