Board Governing the Recording of Judicial Proceedings

Advisory Opinion No. 2004-2


I. Introduction

           The Board Governing the Recording of Judicial Proceedings (the “Board”) received a request for an advisory opinion relating to obligation of a certified court reporter to make a deposition transcript available to a witness to permit the witness to read and sign the deposition. The Board is empowered to “issue advisory opinions to clarify the rights and obligations of court reporters and court monitors under these rules, and any additional standards adopted by the Supreme Court.” Rule 22-402(B)(3) NMRA 2004. The purpose of this Advisory Opinion is to analyze whether the proposed means to make the transcript available to a deponent satisfied the requirements placed upon a certified court reporter under the Rules Governing the Recording of Judicial Proceedings. Rules 22-101 through 22-701 NMRA 2004.

II. Factual Background

          An Albuquerque law firm hired an Albuquerque certified court reporter to take numerous depositions in connection with its pursuit of an action pending before the United States District Court for the District of New Mexico.1 All defendants were located in and were deposed in Taos County, New Mexico. Upon completion of each deposition, counsel for the defendants requested the right for the deponent to read and sign the transcript. See Rule 1-030(E) NMRA 2004. Counsel for the defendants did not purchase copies of any of the depositions. Counsel for the plaintiff, as the party taking the deposition, did order a copy of each deposition and was responsible for the costs of the original and one (1) copy of each deposition taken.

          Upon completion of the preparation of each deposition, the Albuquerque certified court reporter notified counsel for the defendants that the transcripts were ready and that the deponent had thirty (30) days from the date of notification of completion to read and sign the deponent’s deposition. The letter providing such notice indicated that each deponent could review their deposition at the Albuquerque certified court reporter’s office during regular business hours.

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[1]In issuing this Advisory Opinion, the Board is cognizant of the fact that the New Mexico Rules of Civil Procedure and the Federal Rules of Civil Procedure differ as to the persons before whom a deposition may be taken. Compare Rule 1-028 NMRA 2004 with FED. R. CIV. P. 28. For the purposes of this Advisory Opinion, it is assumed that the certified court reporter is governed by and must comply with the New Mexico Rules of Civil Procedure and the Rules Governing the Recording of Judicial Procedure. Persons relying upon this Advisory Opinion, however, should review the Federal Rules of Civil Procedure and seek the advise of counsel of choice to determine whether the analysis contained in this Advisory Opinion is applicable to cases governed by federal rules rather than by state rules.

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          Counsel for the defendants requested that the deponents be permitted to review their respective depositions in Taos County, New Mexico rather than have to travel over one hundred fifty (150) miles to the Albuquerque certified court reporter’s office.

          In response to the request of counsel for the defendants to permit review of the deposition transcripts in Taos County, New Mexico, the Albuquerque certified court reporter offered to e-mail the deposition transcripts to any e-mail address or addresses designated by counsel for the defendants.2 Counsel for the defendants was not satisfied with this proposal. In a further effort to accommodate the requests of counsel for the defendants, the Albuquerque certified court reporter offered to make the completed transcripts available for review by the deponent in Taos County, New Mexico at the same time as future depositions were being taken in the case. Again, counsel for the defendants was not satisfied with this proposal.

          Counsel for the defendants proposed that the Albuquerque certified court reporter forward the transcripts to a certified court reporter located in Taos County, New Mexico designated by counsel for the defendants. Doing so would permit the deponents to review the transcripts at the offices of the Taos County, New Mexico certified court reporter designated by counsel for the defendants. The Albuquerque certified court reporter declined this proposal.

          This scenario raises the question of whether the Albuquerque certified court reporter complied with the Rules Governing the Recording of Judicial Proceedings in the manner in which the Albuquerque certified court reporter made deposition transcripts available to out- of-town deponents to permit reading and signing of the deposition transcripts as provided for under Rule 1-030(E) NMRA 2004.

III. Discussion

          It is the opinion of this Board that the Albuquerque certified court reporter has done all that is required of it by the Rules of Civil Procedure and the Rules Governing the Recording of Judicial Proceedings. In our view, there are three (3) rules impacting this situation.

          First, Rule 1-030(F)(2) NMRA 2004 provides that “[u]pon payment of reasonable charges therefor, the officer shall furnish a copy of the transcript or 

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[2] It appears that the Albuquerque certified court reporter had the ability to e-mail transcripts that could be read on the computer; but, that could not be printed. Doing so would permit the deponents to read and make corrections to their depositions without being able to secure a copy of the transcript for which the Albuquerque certified court reporter was not paid.

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other recording of the deposition to any party or to the deponent.”  As a practical matter, a court reporter’s livelihood depends on being paid for taking depositions and preparing transcripts of those depositions.  Consequently, because counsel for the defendants was unwilling to pay for copies of the deposition transcripts, the Albuquerque certified court reporter had to safeguard its right to remuneration while still making the transcripts available for review.page2image24504

          Second, a related rule provides that a New Mexico certified court reporter must “be fair and impartial toward each participant in all aspects of reported proceedings[.]” Rule 22-505(1) NMRA 2004. This Board has interpreted this rule to mean that a court reporter cannot offer a party anything that is not also offered to all other parties to the litigation. See, e.g., Advisory Opinion 2003-1. Here, the Albuquerque certified court reporter could not provide counsel for the defendants with unrestricted access to a deposition transcript without charge when the Albuquerque certified court reporter had required payment from counsel for the plaintiff for access to the transcript.page2image23688

          Third, Rule 1-030(E) provides:

          If requested by the deponent or a party before completion of the deposition, the deponent shall have thirty (30) days after being notified by the officer that the transcript or recording is available in which to review the transcript or recording and, if there are changes in form or substance, to sign a statement reciting such changes and the reasons given by the deponent for making them. The officer shall indicate in the certificate prescribed by Paragraph F(1) of this rule whether a review was requested and, if so, shall append any changes made by the deponent during the period allowed.page2image24232

          Rule 1-030(E) NMRA 2004. (Emphasis added.) In addition, the Albuquerque certified court reporter made arrangements that would permit the deponents to review their depositions in the county where the deponents lived and the place of the taking of the depositions. In our view, this satisfied the letter of Rule 1-030(E).

          Reading these rules together, it is the opinion of this Board that the Albuquerque certified court reporter should not be made to produce any transcripts under circumstances that might threaten the right of the Albuquerque certified court reporter to remuneration for its work in taking and transcribing the depositions. It is the further opinion of this Board that the Albuquerque certified court reporter offered two (2) reasonable alternatives to the unrestricted transcript access requested by counsel for the defendants. In the Board’s view, the Albuquerque certified court reporter has done all that is required of it under the Rules of Civil Procedure and the Rules Governing the Recording of Judicial Proceedings.

IV. Conclusionpage3image23216

          It is the opinion of the Board that a certified court reporter may satisfy the requirements of making a deposition available to a deponent who has timely requested the right to read and sign, but has not paid for a copy of, the deposition by making the deposition available to the deponent in electronic or non-electronic means that reasonably provides the deponent the opportunity exercise the right to read and sign the deposition. By providing a means to permit the deponent to read and sign the deposition at a location in which the deponent lives and is deposed, a certified court reporter has satisfied the obligations of the Rules of Civil Procedure and the Rules Governing the Recording of Judicial Proceedings in this regard. page3image24032page3image23760page3image23488

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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