Board Governing the Recording of Judicial Proceedings

Advisory Opinion No. 2020-1

   The Board Governing the Recording of Judicial Proceedings (the “Board”) received a request for an advisory opinion concerning whether a certified court reporter, hired by a party to make a stenographic record of a deposition to be conducted by videoconference (Zoom, GoToMeeting, or similar platforms), shall also make an audio-visual recording on behalf of a party, utilizing the videoconferencing software.

   The answer is no.  Videotaped depositions are a distinct and separate means of recording depositions.  They are alternatives to the verbatim stenographic records made by certified court reporters.  See Rule 1-030(B)(2) NMRA, Depositions Upon Oral Examination (requiring the party taking the deposition to provide the deponent notice of whether the deposition will be taken by “sound, sound-and-visual or stenographic means”).  Accordingly, if a party taking a deposition wants a videotaped record of the deposition, that party should notice the deposition as a videotaped deposition and make the appropriate arrangements for the services of a videographer.

   Videotaped recording of depositions are governed by a specific Rule of Civil Procedure.  See Rule 1-030.1 NMRA, Audiotaped and Videotaped Depositions.   Rule 1-030.1 sets out both the procedural and the extremely precise technical requirements for taking videotaped depositions.  For example, pursuant to Rule 1-030.1(C)(3):

[U]nless 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[.]

    Rule 1-030.1(B)(6) also mandates, among other requirements, that the “audio or video operator” prepare a log synched to specific events occurring during the deposition:

[T]he 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[.]   

   Certified court reporters are authorized by the Board’s rules to take depositions using stenography and to transcribe deposition testimony recorded by stenographic means.  See, e.g., Rule 22-304 NMRA, Transcript Authorized.  Nothing in the Board’s rules contemplates a certified court reporter who is taking a deposition by stenographic means to simultaneously act as a “video operator” and to record a videotaped deposition.