Confidential v. Attorneys' Eyes Only Transcript

[Deby]

Hello,

Rather than have the reporter prepare two separate transcripts (one Confidential and the other Non-confidential), the attorneys agreed to have the entire transcript prepared as Confidential.

Midway through deposition, one atty says that some of the exhibits really were marked as Attorneys' Eyes Only, as for, say, Exhibit 6, "and there were others," with no mention having been made as to which those "other" exhibits were.

Would it be appropriate in this situation to mark the entire transcript as:  Confidential/Attorneys' Eyes Only; i. e., with both titles but with a slash?

Or is reporter expected to look through all of the exhibits, hoping to find which ones, if any, were marked: Attorneys' Eyes Only, and then prepare a separate transcript, based on those exhibits?

The idea of marking entire transcript as Confidential was to prevent two separate transcripts being made.

Would most appreciate your experience in this matter, please.

Thanks so much.

[Marge Teilhaber (TILE hobber)]

What a huge PITA.    Now you need to discuss with the taking atty and get agreement from everyone that it'll be one transcript with a different headers distinguishing confidential from atty eyes only and it noted on the index where Attys' Eyes Only starts and ends perhaps.  The only experience I have to offer is that it's a major nuisance and that it's up to them, either in person or via email.   I hope it stays one transcript!

[Quyen]

Just e-mail both attorneys/parties and ask if they want one transcript regardless of the two different designations on exhibits. If they want different designations, ask them to please specify exactly which exhibit numbers are which.

[Janet]

They usually agree to mark the entire depo Confidential - Attorneys' Eyes Only.  They then have a time period to de-designate portions after the transcript has been submitted. 

 

I hope that's what theyll agree to.   It is a PITA when they want separate transcripts since half of the time they forget to mention when they're out of the confidential portion.

[Deby]

Thank you very much, Ladies.  You're the best!

One last question:  After the time period to de-designate portions, after the transcript has been submitted, what happens to the transcript?  Were their comments of de-designation placed on an errata sheet?  Is the transcript returned to the reporter? 

Thanks, again.

[Rhonda Hall Breuwet, RDR CRR CLR]

You need to clarify with them because I've recently had a discussion with an attorney and found out that "confidential" and "attorneys' eyes only" mean two different things.  They aren't terms of art that attorneys just pick which they like and use it, kind of like some attorneys refer to realtime as LiveNote, though we know LiveNote is just ONE method of receiving realtime.  

"Attorneys' Eyes Only" means just that -- ONLY the attorneys involved may see it.  "Confidential" means that attorneys and the parties and perhaps expert witnesses can see it.  So on the attorneys' eyes only, not even the plaintiff or defendant are supposed to have access to it.  I guess the difference was made for those cases where there is trade-secret info divulged.  If it's just confidential, then the CEO of Company A that is suing Company B can see Company B's trade secrets.  If it's made attorneys' eyes only, then the CEO doesn't have access to it.

Make sense?

[Deby]

Yes, Rhonda, that's exactly what it means, two different things.

Since my question and thoughts from the ladies, I have clarified with attys, asking for advice on how dep should be designated, after reminding them that the purpose of marking the entire dep as Conf was to prevent two separately-prepared transcripts, and would they prefer:  a) Confidential, b) Attorneys' Eyes Only, c) Confidential/Attorneys' Eyes Only transcript. All agreed to Option C, thankfully.

But I am curious:  After the time period to de-designate portions, after the transcript has been submitted, what happens to the transcript?  Were their comments of de-designation placed on an errata sheet?  Is the transcript returned to the reporter? 

Thanks in advance.

[Mary Ann Payonk]

Hi, Deby.  You got some great advice there.  All I can say is that when you move from Guardian of The Record into being expected to read exhibits and designate them as confidential or attys' eyes only, you'll be relegated to the position of associate at a law firm - and you can't afford that pay cut.

M.A.