On the Record/Off the Record
Posted by YOM Staff
On the Record/Off the Record
Obligations of a Court Reporter during court proceedings
As you near the end of your deposition outline, opposing counsel objects to your question and instructs his client not to answer. You ask the court reporter to go off the record to allow you to discuss the objection with counsel, but opposing counsel disagrees and tells the court reporter to stay on the record so that the discussion is memorialized in full. Sound familiar?
Or consider this situation: During a deposition, the witness did not answer several questions upon her counsel's instructions. After the deposition, the opposing attorney made several remarks overheard by the reporter and others indicating that the witness knew of information or documents responsive to the questions. The deposing attorney asked the reporter to go back on the record so that she could ask the questions of the witness again. The reporter did so, but the witness again declined to respond, and opposing counsel refused to confirm the comments he made while off the record. The deposing attorney asked the reporter to prepare a record of the opposing counsel's off the record comments.
A court reporter is obligated to go on the record when either party asks to be on the record.
The National Court Reporters Association's Code of Professional Conduct requires fairness and impartiality to all parties in a proceeding, including any appearance of impropriety. The reporter is therefore duty-bound to record the proceedings when either party asks to be on the record, regardless of which party hired her or is paying his bill.
Unless the parties agree to go off the record, the court reporter is obligated to remain on the record.
By the same token, a court reporter cannot go off the record until both parties agree to do so. Under Washington's standards of professional practice for court reporters and the National Court Reporters Association's Code of Professional Ethics, court reporters have a duty to preserve and accurately transcribe information entrusted to their care. Going off the record prematurely would cause the parties and the court to lose the opportunity for an accurate record of that testimony. The same rule applies when a deposition is cut off by the defending party, for example, when the defending party states an intention to seek a protective order and terminates the deposition. In that situation, the court reporter must stay on the record while the witness is excused, even if only temporarily, and must also record the attorneys' positions on the objection or basis for the protective order. Only when both attorneys agree to disagree and indicate that there is nothing more for the record that day, does the reporter's obligation to preserve the record conclude.
A court reporter cannot transform off the record comments into an on the record transcript.
A reporter’s duties of accuracy and fairness prevent his amending a transcript to include statements that were made off the record.
However, if the parties cannot agree to summarize or recreate an off the record communication back on the record, the content of that conversation may not be lost. A court reporter, like any other member of the public, may give testimony about statements and events that occurred in his presence. Typically, in this situation, a reporter will be asked to sign a written statement describing the events and statements he witnessed. Usually, the lawyer requesting the statement will draft the statement, called a declaration or affidavit. The reporter should review it carefully and revise it for accuracy. A reporter is not obligated to sign a statement, but can be subpoenaed to testify in court or by deposition, so a signed statement is often the most convenient and efficient route for everyone involved.