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Transcript orders from nonparties

  • 06 Feb 2010 10:01 AM
    Message # 281257

    Does anyone know what rule (if any) there is on a nonparty ordering a copy of a deposition transcript?   We rec'd a request from an attorney who wants a copy of a transcript of a deposition someone in our firm took five years ago.   He was not present at the deposition, was not a party to the case at all, and is not divulging the reason for wanting the transcript now.   We called "taking" attorney and he said he had no idea who this attorney was -- never heard of him -- but, more importantly, when we asked if it was okay to sell this guy a copy of the transcript, he said, "Absolutely not."  

    We feel the same way, as we do not know why this gentleman wants this transcript and for what purpose.   He is not new counsel to the case from what we can surmise, and he's not revealing his reasoning for wanting it when we inquired.

    His secretary said, "I thought anybody could purchase a copy of a transcript."   So before I return her call (I did not personally speak to them, only the reporter involved), I'd like to be forearmed for my reasoning of not selling them a copy of a transcript to which they have no involvement in that particular case (at least from what we can determine).  I've searched SCAO's book on court reporters and furnishing of transcripts and this subject does not appear to be covered.  Perhaps there's federal rules we should be looking at.

    Anyone out there that has come across this situation before and knows the answer, please advise.

     

     

  • 08 Feb 2010 10:22 PM
    Reply # 288355 on 281257

    Hi Liz

    The only thing I can think of is that if the deposition was never used in a public trial, it could not be considered available to the public, do you get what I mean?   It could be used in a divorce or something especially if he won't divulge why he wants it.   I think there is some privacy issues involved if it was taken in a case that never went to trial.   BUt I think you are right in calling the taking attorney first.   I would do that also.   I can't cite any rules or laws, but I would not sell if the attorney says no.

    Pat Hyland

  • 09 Feb 2010 7:58 AM
    Reply # 288481 on 288355
    Patricia Hyland wrote:

    Hi Liz

    The only thing I can think of is that if the deposition was never used in a public trial, it could not be considered available to the public, do you get what I mean?   It could be used in a divorce or something especially if he won't divulge why he wants it.   I think there is some privacy issues involved if it was taken in a case that never went to trial.   BUt I think you are right in calling the taking attorney first.   I would do that also.   I can't cite any rules or laws, but I would not sell if the attorney says no.

    Pat Hyland


    Thanks, Pat, for that response.  You know how sometimes you just want affirmation that you're doing the right thing, and both you and Marie Puchel responded similarly.

    I spoke with the attorney yesterday and he was none too happy with me, but I explained that there may be confidential information in the transcript, perhaps a protective order entered into by the parties after the fact, et cetera -- a whole host of reasons why we shouldn't just sell a transcript (from a deposition) to nonparties.    I told him who both plaintiff and defense counsel were (which I think he already knew) and that if he wanted a copy, to contact them.   (We had already called taking party and he said no.)   So he informed me he was going to be sending me a subpoena.   I said fine, do what you need to do and we'll deal with it when we get it.

    It was still unclear to me who he represented and I really don't think he wanted me to know anyway.  He just said he actually found the reporter's name from someone who has a copy of the transcript that was NOT either plaintiff or defense counsel and intimated that there was someone out there who already had a "bootlegged copy" (my term) of our transcript and that he was trying to do the right thing by purchasing it direct from the reporter and now was being penalized.   (Which still begs the question:  If someone else out there that he knows has a copy, why didn't that person give him a copy?)   So it's all too fishy to me.

    Liz

     

     

     

  • 09 Feb 2010 4:24 PM
    Reply # 288790 on 281257

    Hi, Liz,

    Here is a copy and paste of Advisory Opinion No. 9 from the NCRA website.  Just an FYI.

    Tami

     

    Advisory Opinion 9

    Selling the transcript to third parties/When is a deposition a public record

    (Originally written, 1989; Revised, 1997)

    Statement of Facts

    A reporter sells copies of a deposition transcript to parties other than the litigants, including the press. Is this practice a violation of the Code of Professional Ethics?

    Discussion

    Although rules vary from state to state, in general, a deposition transcript becomes a public document when it is filed with the court and becomes a part of the record in an official proceeding. Under the laws of most states, therefore, a deposition that has not been filed as part of an official proceeding is not a public document.

    Provision No. 4 of the Code of Professional Ethics provides that a reporter has an obligation to preserve the confidentiality of information entrusted to the reporter by the parties. It is the Committee's opinion that the parties have the right to expect that any information entrusted to the reporter will be kept confidential until the parties themselves decide to make the deposition a public document. Unless a deposition transcript has been made a part of the public record, the reporter must obtain the permission of all parties and the deponent (not just the hiring party) before selling or otherwise releasing the transcript to any third party.

    Once a deposition transcript has been made a part of the public record, subject to any protective order or state or local rule to the contrary, the reporter may sell the transcript to third parties without the consent of the parties or the deponent.

    Conclusion

    It is the Committee's opinion that the selling of deposition transcripts that have not been made part of the public record to other than the litigants and the deponent without the agreement of the litigants and the deponent constitutes a violation of Provi-sion No. 4 of the Code of Professional Ethics.

    Once a deposition transcript has been made a part of the public record, subject to any protective order or state or local rule to the contrary, the reporter may sell the transcript to third parties without the consent of the parties or the deponent.


    THIS PUBLIC ADVISORY OPINION REFLECTS THE STATUS OF THE LAW IN MOST JURISDICTIONS. MEMBERS ARE REQUIRED TO CONFORM TO THE ACCEPTED PRACTICES SET FORTH IN THIS PUBLIC ADVISORY OPINION TO THE EXTENT THAT SUCH PRACTICES ARE CONSISTENT WITH THEIR OWN APPLICABLE STATE AND LOCAL LAWS, RULES AND REGULATIONS.





  • 10 Feb 2010 8:54 AM
    Reply # 289108 on 281257

    Thanks, Tami,

    That is exactly the type of information I was looking for to bolster my argument.   However, the latest is he is going to subpoena the transcript since we won't give it to him voluntarily.   Oh, well....

    Liz

     

Michigan Association of Professional Court Reporters
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