A court reporter has requested guidance from the Board on who has final authority in transcription production based on the following statement of facts:

          A court reporting firm subcontracts out a deposition to a court reporter. The court reporter prepares the deposition transcript verbatim, including attorneys' false starts, witnesses' "uh-huhs" and "huh-uhs," parentheticals such as "(nodding)," et cetera, as well as interrupted questions and answers. The firm edits the reporter's final transcript and sends the final transcript out under the court reporter's signature.  Some editing examples were:

"Q. Were you able to work at all --

"A. Huh-uh.

"Q. -- while you were doing that -- no?"

Edited to:

"Q. Were you able to work at all while you were doing that?

"A. No."

* * * * *

"Q. The elbow occurred while you were down --

"A. I was in Belen.

"Q. -- in Belen?

"A. Yeah.

"Q. 96, January?"

Edited to:

"Q. The elbow occurred while you were down in Belen?

"A. I was in Belen, yeah.

"Q. '96, January?"

* * * * *

"Q. So you went to the doctor?

"A. (Nodding.)

"Q. X-rays?

"A. Uh-huh."

Edited to:

"Q. So you went to the doctor?

"A. Yes.

"Q. X-rays?

"A. Yes."

* * * * *

"Q. Looked at the university.

"A. Uh-huh.

"Q. Checked out the art school.

"A. (Witness nodding.)"

Edited to:

"Q. Looked at the university?

"A. Yes.

"Q. Checked out the art school?

"A. Yes."

          The court reporter believes that the deposition transcript should be as accurate a reflection of what occurred during the proceedings as is possible; that it is counsel's responsibility to make the record, and the court reporter's job is simply to preserve the record.

          The court reporter firm's office practice is to judiciously edit or clean up "uh-huh" and "huh-uh" to "yes" and "no"; that because the reporter is, in effect, interpreting an affirmative response when a witness nods or a negative response when shaking the head, that it is appropriate to edit the response to a "yes" or "no" for ease of reading in the discovery process, considering counsel is primarily interested in differentiating affirmative or negative responses. In addition, dashed questions and answers are often joined and edited for ease of reading to save transcript costs for counsel.

Conclusion:

          While there are other examples, this scenario reflects two schools of thought taught in schools and practiced throughout the country. There are no direct guidelines that address this philosophical dilemma, and the Board does not endorse either position to the exclusion of the other at this time. However, the Board cautions that joining multiple questions for ease of reading can often have the effect of misrepresenting the tenor of the deposition or, worse yet, misrepresenting the knowledge and testimony of the deponent.

          The National Court Reporters Association has adopted Advisory Opinions 10, 19 and 34 which discuss certain aspects relating to the freelance court reporting firm/subcontract court reporter relationship and offers some insight. The Board endorses these advisory opinions, and would emphasize that until such time as the specific "editing" issues are resolved, a reporter is duty-bound to make no material change in the transcript that would have an adverse effect upon any party or parties, and should not certify a transcript as true and accurate if the transcript has not been personally produced or verified under the reporter's direction and control. 

          Therefore, the court reporter should have final editing discretion before certifying the transcript. The court reporter is the person that certifies that the (1) deponent was duly sworn by the reporter, (2) the transcript is a true and accurate record, and (3) the reporter is the person that took and reported the deposition. Once the court reporter certifies the transcript, any alterations, changes or modifications to that transcript by the court reporting firm call into question the accuracy of the record. Such activity by the firm would be a violation of Provisions 1, 3 and 9 of the Code of Ethics set out in the Board's rules governing court reporters.

          As reiterated by NCRA, reporting arrangements and guidelines for transcript preparation are best addressed in employment agreements and professional contracts before such problems arise. The court reporting firm should set out what its policies are in reporting and preparing transcripts, and the court reporter should decline the engagement if uncomfortable complying. Additionally, IRS requirements for classifying independent contractor court reporters can provide addition guidance in establishing employment arrangements.