Reporter Privilege? What You Need to Know
Posted by YOM Staff
What you NEED to know about Reporter Privilege
Does transcribing Client-Attorney communications affect privileged information?
The walls have ears: Waivers of attorney-client privilege
There are many rewards to working with the same reporter or reporters over time. But don’t let familiarity and comfort cause you to inadvertently disclose information that will waive your client’s evidential privileges or cause the reporter to become a witness in your case. National Court Reporters Association Advisory Opinion 11 describes a situation where a court reporter became a witness in the case she was reporting: The defendant made a statement to his lawyer while standing in or near a conference room where a court reporter was setting up for a deposition in a different case. The reporter overheard the defendant's statement. Months later, the court reporter was assigned to fill in for the scheduled court reporter at trial. During opening statements, she realized that the statement she overheard was probative to the case's outcome. Following her confidential disclosure to the court, she was sworn in as a witness to testify to the statement she overheard.
A reporter transcribing a court proceeding or deposition is not an agent for either party regardless of whether one party arranged for the reporter's services. Even after the other party leaves the room, attorneys should remember that they are not alone. A court reporter who overhears a conversation between the deponent and his lawyer is just like any other member of the general public, and is not bound to maintain the confidentiality of what she overhears. The same is true for a reporter who overhears otherwise privileged conversations, such as those between two deponents who are married to one another. Instead, the client has waived his privilege. Though it may occur only rarely, the court reporter may have an obligation to disclose the overheard statement to the other party or to the court, so the best practice is not to put the reporter in that situation.
When is the attorney-client privilege maintained?
When a reporter is hired to transcribe an attorney's confidential interview with his or her client, the communications between the attorney and client remain privileged even though the reporter overhears (and records) them. This is because the reporter is acting as an agent of the client by way of the attorney, so the privilege is not compromised. See U.S. v. Evans, 113 F.3d 1457, 1462 (7th Cir. 1997); Grubbs v. K Mart Corp., 411 N.W.2d 477, 480 (Mich. App. 1987). When reporters are retained to transcribe client interviews, the attorney should make the agency relationship explicit in the engagement. As a practical matter, to avoid an actual or potential conflict, the reporter transcribing the interview should not be hired to transcribe any depositions or court testimony in the same case. A different reporter from the same agency can report non-confidential proceedings, but to avoid any actual or potential conflict of interest, the attorney may want to inform all parties that the agency (though not that reporter personally), transcribed interviews as an agent of the law firm, subject to attorney-client privilege.