Stipulating away the Original

[Professional Reporting Services,]

Our client was in LA today taking a depo and we told her not to stipulate away the Original. Well she refused to do the Stip and just called saying the other side is absolutely furious with her, demanding that she do so and also asking for the codes regarding this.  I explained to her that you cannot relieve the Court Reporter of her duties. I actually feel sorry for putting her in this position.

We've had a little push back before from LA attorneys but nothing like this. Has anyone else?

Jerry

[Quyen]

Tell her to tell them that she paid for her O&1, and if they want a copy, they are more than welcome to purchase their own. There is nothing in the code that says she must agree to their stip. She should ask them to show her the code that requires her to acquiesce to their demand. She can tell them that she is actually FOLLOWING THE CODE, and they are going around it.

[Lindsay Pinkham]

What Quyen said is true.  But attys have been making the So. Cal. stip since the 1960s, so for them it's become written in stone.  Most of them are ignorant of this part of the code.  They are just given a standard stip by their law firm and read it out loud at the end.  So I'm not surprised that you got a lot of pushback from opposing counsel.  The No. Cal reporters have the advantage that their clients are used to following the code.  You've probably seen the bewilderment that ensues at the end of a depo when you get a No. Cal and So. Cal atty together!  Neither one understands what the other is talking about.  And yes, So. Cal attys believe they have a right to get that orig. sent directly to them (esp. plf's attys, who depend on that so they can save the expense of paying for it).  It's a difficult situation for sure.

[Professional Reporting Services,]

Just my observation but it appears as if the SoCal Court Reporters are not making their displeasure of this practice known to the Attorneys.

[Lindsay Pinkham]

I would be rather wary of "voicing my displeasure" to a client. I freelance for many agencies, so it's not like I'm pals with an atty that I work with all the time. I don't want an client complaining about me to the agency and getting my name struck off their freelance list.
I wish it wasn't like this in Southern California, but attorney make stipulations about stuff all the time, including waiving the provisions of the CCP regarding disposition of originals. If they're used to doing this and a reporter all of a sudden refuses to comply, they're going to be very displeased themselves. If it were actually illegal to make this stipulation, they wouldn't be allowed to make it. And I don't want to bear the anger of the attys.
I think a better tactic would be for agencies to educate their clients that since they're paying for the original, why should they furnish it to the other side so they can make a free copy.
We would also have to revamp our pricing structure. The rate to the rptr for the 0&1 in NoCal is much lower than what we in SoCal are used to getting, and the copy rate is higher, because they're always assuming an 0&2. When I do LA depos for NoCal agencies, I always negotiate a what-if 0&1 rate that is more like I'm using to getting, because when they are taking a depo down here with a SoCal atty, you can't assume you're coming out with an 0&2.

[Maverick Reporting, Inc.]

I run into this issue all the time as an agency owner, and I personally refuse to send the original to the Plaintiff attorney, stipulation on record or not. I'm willing to hold my ground and deal with the judge/opposing counsel if needed. This is a ridiculous practice solely designed to relieve opposing counsel from paying for a transcript, which is actually putting my own client in a negative position. I've had push back in the past where my client was called and opposing counsel was furious about it, but I calmly explained that either opposing counsel can pay for their own copy, or if the client wants to pay for the copy to be sent to opposing counsel, we can do that as well. That usually does the trick and turns on the light bulb. If more of us would stand firm against this practice, maybe it would send a message.

And as an aside, just because something has been in place for a long time doesn't mean it's an acceptable or ethical practice..

[Kerry F]

Way to go!!!

[Quyen]

Well put, Jason, and my sentiments exactly.

I've often explain/ask the noticing attorney in private why they'd want to pay for the other party's copy, and most of them don't even realize that's what they're doing, and thus I've often dissuaded the attorney from doing so. I explained to one defense attorney that, generally, plaintiffs have to depose more witnesses than the defense in litigation; therefore, they bear most/more of the cost. I also explained to him that the opposite is true of class actions (which was the case we were working on), where the defense often potentially deposes MANY, sometimes hundreds, of plaintiffs, and so the defense bears most of the cost. I could see the lightbulb go off in his head, and he said he never even thought about that and that he would talk to his partners at his fim about it. He ended up not stipping away his copy. Win!

[Lindsay Pinkham]

Much as I'd like every job to be at least an 0&2, I still think this argument is one best made by the agency to their client outside of the depo setting.  If I've been reporting all day and they whip through the stipulation at the end, the last thing I want to do is interrupt the proceedings and take everyone by surprise by refusing to accept their stipulation they've been making for years and years and then have some private discussion with my client and attempt to explain the law to him and get him to change the way he's always been doing things.  Frequently the attys are young associates that don't even have the authority.  I'd like the agency to do the heavy lifting on this - it's their client, not mine.

[Quyen]

It's a casual conversation.  I don't tell them what to do.  Of course, it's ultimately the attorney's decision.  But, if, in having this casual conversation, it dissuades them from entering the stip, then great.  That's one less copy being given away for free on our backs.  It's a win for the reporter and the agency.

[Janiece Young]

Agencies won't do it.

[Emily H.]

One of the things that makes me very uncomfortable about the LA stip is that if another party is added to the lawsuit later and they call up to get a copy from the reporting firm, the reporting firm will have no way of knowing if the deponent made changes to their testimony and therefore cannot provide an errata sheet with the copy to the new party.  Let's face it -- sometimes deponents make some pretty big changes to their testimony.  It's not often, but I've seen it happen.

I do wish the CSR Board would weigh in on this issue and settle it once and for all.  We need to be told that either (a) it's okay to let the parties stip away the original and that we as reporters will in no way be held responsible for not following the Code, or (b) the practice needs to be outlawed.  The grey area we deal in now is untenable.

I've heard stories about judges refusing the original if it isn't sealed, but I don't know if that's just an urban legend or fact.  Has anyone else heard of this?

One time I did a depo for an LA CSR firm with LA attorneys on an LA-venued case, but the depo was in Nor-Cal.  When they did the stip, I politely put myself on the record saying that it's not something we do in the north and further explaining why I'm against it.  I said that since everyone was from the south, I'd go along with it but that I wanted to be on record as objecting.  Lo and behold, the noticing attorney, a very seasoned attorney in his 60s, said, "She's absolutely right.  That stipulation means nothing," and then he proceeded to go by Code.  YES!!!

[Janiece Young]

I would just tell the O&1 attorney to say to the opposing counsel, "Why would my client want to help your client?"  You sued my client or I sued your client, whatever the case may be.  This whole practice is ridiculous.  Does each side pay part of the hourly rate for the attorney on the other side of the table?  This practice, the So Cal Stip, needs to stop.  It does not pass the smell test.  For the plaintiff to be helping the defendant with costs while in litigation or the defendant to help the plaintiff with costs during litigation all at the expense of the court reporter, it's not right.