CAN WE REDACT TESTIMONY IF BOTH SIDES AGREE?

[Marla Sharp]

I'm in California, and I'm not sure if there's a code relating to this.  If anyone knows, please post here and let me know.

 

I was asked by both counsel involved in the case to redact the witness's testimony about a conviction he'd had.  It's a short amount of testimony; just a couple of Q and A's.  But it seems strange to just remove it.  I was thinking of putting in a parenthetical, like (testimony redacted per the request of all present counsel) or some such thing. 

 

But I was thinking that a parenthetical would only send a red flag to the guy's employer because they're the ones the case is about, and they're the reason they wanted it redacted.  I guess they figured there's no reason for this guy to get thrown under the bus personally in a case about his employer.

 

Any opinions or knowledge about the California code or ethics standards or anything?

 

Thanks!

[Kelli Combs (admin)]

Yes, you can as long as they both agree.  I have done it before.   I would put a note in the transcript, though, (Pursuant to stipulation,  testimony redacted.) or something to that effect just so it is clear there was an agreement about it.  Sort of a CYA, if you know what I mean.

[Marla Sharp]

Thanks for the quick reply, Kelli.  Yeah, I was thinking the same thing about a CYA parenthetical.  But I'm just afraid that the parenthetical will bring to his employer's attention something was redacted and cause them to ask him or counsel what it was, and they may be forced to explain it was about a past conviction.  And then, basically, exactly what they didn't want to have happen (his employer finding out about it), will happen.  See what I mean?  So I'm considering not putting in the parenthetical and am wondering if that's appropriate.

[Kelli Combs (admin)]

Did you get on the record that they agreed to have something redacted?   When counsel agree to have something redacted, I always have them put it on the record.

 

If that's on the record, you are safe.  Then again, if that's on the record, the employer will see that too.

[Quyen]

This is how I have done it (before/after counsel stipulation is on the record):

Q [REDACTED PER STIPULATION]

A [REDACTED PER STIPULATION]

Q [REDACTED PER STIPULATION]

A [REDACTED PER STIPULATION]

 

Strictly technically speaking and no insensitivity intended, I don't feel it's our job to protect the deponent; that's his/her attorney's job.

 

Oh, and make sure you also keep a full backup/saved copy of the file without the testimony redacted . . . to CYA.

 

HTH.  :)

[Kelli Combs (admin)]

I was on a depo last week and the attorney was telling me about this judge that got in a whole heap of trouble for telling his reporter to strike everything that was not relevant to the sentencing.  I guess he was just insulting the defendant terribly.  The reporter took out all his insulting comments.   I think they both got in trouble for it.

 

I felt bad for the reporter because you want to keep your judge happy and keep your job but at the same time we aren't supposed to take out testimony.  Talk about being stuck between a rock and a hard place. 

[Martha R]

if it's just a couple words you're redacting, my software has a black redaction mark.  I have only had to use it once though.