1-030.1. Audiotaped and videotaped depositions.

A.  Definition; "stenographic recording". As used in these rules, "stenographic recording" or "stenographically recorded" shall mean reporting by simultaneous verbatim reporting. 

B.  Copies. At the request of any party to the proceeding or the deponent, a party who notices an audiotape or videotape deposition shall promptly: 

(1)       permit any other party or the deponent to review a copy of the audiotape or videotape and the original exhibits, if any; and 

(2)       furnish a copy of the audiotape or videotape in the format in which it was recorded to the requesting party on receipt of payment of the reasonable cost of making the copy. 

C.  Audio-video deposition requirements. If a proceeding is to be recorded by audiotape or videotape, unless the court otherwise orders or the parties otherwise stipulate: 

(1)       it shall be recorded in accordance with Paragraph B of Rule 1-030 NMRA

(2)       each witness, attorney and other person attending the deposition shall be identified on tape or on camera at the commencement of the deposition. Only the deponent and demonstrative materials used during the deposition will be videotaped; 

(3)       unless physically incapacitated, the deponent shall be seated at a table or in a witness box except when reviewing or presenting demonstrative materials for which a change in position is needed. To the extent practicable, the deposition will be conducted in a neutral setting, against a solid background, with appropriate lighting. Lighting, camera angle, lens setting and field of view will be changed only as necessary to record accurately the natural body movements of the deponent or to portray exhibits and materials used during the deposition. At both audiotaped and videotaped depositions, sound levels will be altered only as necessary to record satisfactorily the voices of counsel and the deponent; 

(4)       the officer conducting the deposition may only go off the record with the agreement of the parties, which shall not be unreasonably withheld. When the parties go off the record, the audio or video operator will state on the tape "going off the record, the time is _________". At this point no audio or video recording shall be made. When going back on the record, the operator will state on the tape "going back on the record, the time is _________"; 

(5)       if the length of a deposition requires the use of more than one tape, the end of each tape and the beginning of each succeeding tape shall be announced on the audiotape or videotape; 

(6)       the audio or video operator shall use a counter on the recording equipment and shall prepare a log, cross-referenced to counter numbers, that identifies the positions on the tape: at which examination by different counsel begins and ends; at which exhibits are identified; and at which any interruption of continuous tape recording occurs, whether for recesses, "off the record" discussions, mechanical failure or otherwise; 

(7)       at the conclusion of the deposition, a statement shall be made on the audiotape or videotape that the deposition is ended. The operator shall mark as "original" and consecutively number each tape; 

(8)       the original audio or video recording may not be edited or altered. Copies of the audiotape or videotape may be redacted as may be appropriate for use in court. 

D.  Approval of audiotaped or videotaped deposition. If there is no stenographic transcription of the deposition, the attorney or self-represented party in possession of the audiotape or videotape promptly shall provide a copy of the tape to the deponent, unless the deponent and all parties attending the deposition have agreed on the record to waive review, correction and certification by the deponent. Within thirty (30) days after receipt of the audiotape or videotape, if there are changes in form or substance, the deponent shall sign a statement reciting such changes and the reasons given by the deponent for making them. If the deponent fails to provide a timely signed statement, no changes may later be made to the deposition. 

E.  Use in court proceedings. A party desiring to use an audiotaped or videotaped deposition pursuant to Rule 1-032 NMRA shall be responsible for having available appropriate playback equipment and an operator. 

[Approved, effective February 16, 2004; as amended by Supreme Court Order No. 06-8300-007, effective May 1, 2006.] 

Committee commentary. — 

Comment A. In general.

The 2006 amendment added "the officer conducting the deposition may only go off the record with the agreement of the parties, which shall not be unreasonably withheld" to Subparagraph (4) of Paragraph C. A similar provision was added to Paragraph C of Rule 1-030 NMRASee Rule 1-028 NMRA for officers before whom a deposition may be taken. 

In 1999, Rule 1-030 NMRA was amended to permit parties to audiotape or videotape depositions without prior permission of the court, unless the court ordered otherwise on motion of a party opposed to recordation by audio or video means. 

Experience with the 1999 rule brought problems to light. First, there were no standards for assuring that audio or visual machine operators would accurately record the deposition. Second, other rules dealing with deposition procedures, such as the provision allowing the deponent to review and make corrections of the official record of the deposition, proved cumbersome when applied to audiotaped or videotaped depositions. 

In conjunction with changes made in other rules, Rule 1-030.1 NMRA improves the administration of the use of video and audiotaped depositions in court proceedings. Rule 1-030.1(C) establishes standard procedures for conducting audiotaped and videotaped depositions unless the parties agree otherwise or the court orders otherwise. Rule 1-030.1(D) specifies the procedure for providing copies and for securing approval of depositions when an audiotaped or videotaped deposition is taken. Finally, Rule 1-032(C) NMRA provides for the method of presentation of audiotaped or videotaped depositions in court proceedings. 

Comment B. Audiotaped and videotaped depositions.

A party need not get prior court approval in order to audiotape or videotape a deposition. The party noticing a deposition is required to designate in the notice the method by which the deposition is to be taken. Rule 1-030(B)(2) NMRA

Comment C. Simultaneous verbatim reporting of audiotaped or videotaped depositions.

There are no existing provisions for licensing and certifying persons who operate audiotape and videotape equipment to record depositions. (Only certified court monitors of "in-court" proceedings are currently regulated and certified. See Rule 22-201 NMRA). Until regulations assuring competence of audio and video operators and the accuracy of the audio or video record exists, accuracy can best be assured by requiring compliance with the requirements set forth in Rules 1-030(C) and 1-030.1(C) NMRA and supplemental court orders, if any. 

Comment D. Cost of recording depositions.

The party taking the deposition will be responsible for payment of the cost of the deposition in the format specified in the notice. Rule 1-030(B)(2) NMRA. If another party designates another method to record the testimony, the additional record will be made at that party's expense unless otherwise ordered by the court. See Rule 1-030(B)(3) NMRA

Comment E. Procedures and requirements for recording audio or video depositions.

Because audio and video depositions can take place without prior court approval, there is a need to set general standards for conducting such depositions. Rule 1-030.1(C) does this. The court may, on motion, modify these standards or add to them. 

Comment F. Approval of audiotaped or videotaped depositions.

While the original audiotapes or videotapes cannot be physically altered, Rule 1-030.1(C)(8) NMRA, the deponent may review the recording and, in a separate writing, note substantive or formal changes in the recorded testimony and the reasons therefor. Rule 1-030.1(D) NMRA. If a stenographic recording was made by a certified court reporter, a statement reciting changes to the stenographic recording should be made pursuant to Rule 1-030(E) NMRA.

Board Governing the Recording of Judicial Proceedings (CCR Board) P.O. Box 65157 Albuquerque NM 87193-5157 (505) 269-2669, email: ccr@ccrboard.com

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