Products Liability Issues Concerning Depositions, Backup Audiotapes By Michael Hoenig - New York Law Journal - April 14, 2008	Print article

In this article we review three recent federal decisions discussing some off-the-beaten-path issues concerning depositions. A fourth case clarifies whether production of a court reporter's backup audiotapes can be compelled when a litigant disputes the accuracy of the transcript.

Reviewing Depositions

Did you ever notice how in some cases deposition witness after witness tells the same story even using similar phrases or catchwords? Have you ever thought to question whether future witnesses will have reviewed or been informed about the deposition testimony of prior witnesses? In cases where a string of witnesses is to be deposed and you suspect there may be "coaching," perhaps by reviewing deposition testimony previously taken in the case, is there some way you can try to prevent the prospective witnesses' review of the prior depositions? Is there anything wrong with letting future deponents read prior deposition testimony or review videotaped depositions? Are there any tactical risks in doing so? Could that practice run afoul of witness exclusion rules where the depositions might be used at trial? More likely, you haven't even considered whether the trial witness exclusion rule could apply to deposition proceedings. These tantalizing tactical considerations are reflected in a snippet of an opinion by a U.S. Magistrate Judge for the Eastern District of Kentucky.

In In Re: Air Crash at Lexington, Kentucky,¹ the defendant prepared witnesses for depositions by allowing them to read or watch the videotape of other witnesses' depositions in the case. Plaintiffs objected. Plaintiffs claimed, first, that this practice violated a case management order which said that, unless otherwise agreed, depositions could be attended only by the parties, the deponent and attorney and other specified individuals or categories of persons. Second, plaintiffs urged that the court grant a protective order "excluding" witnesses from reviewing other witnesses' testimony.

Defendant responded that the case management order was not intended as a sequestration order and, further, that Federal Rule of Evidence 615, entitled "Exclusion of Witnesses," is not applicable to depositions. Plaintiffs rebutted by observing that the depositions were being videotaped and, thus, "each of them constitutes potential trial testimony." This factor, they argued, implicates a prospective witness' ability to testify after having reviewed the portion of a deposition used as trial testimony.

Should the court here issue a sequestration or protective order "excluding" deposition witnesses from reviewing other witnesses' videotaped depositions? "No," held U.S. Magistrate Judge James B. Todd. First, the case management order's specification of attendees at a deposition was merely intended to address attendance as an initial procedural requirement associated with handling a large number of cases consolidated for pretrial purposes. The provision did not arise from any request for a protective order for separation of witnesses.

Second, and most importantly for our purposes here, the court observed that a 1993 amendment to Federal Procedure Rule 30(c) specifically excepted Evidence Rule 615 from the statement, "The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence . . . ." This exception meant, according to a 1993 Advisory Committee Note, that "other witnesses are not automatically excluded from a deposition simply by the request of a party."

Instead, said the Advisory Committee Note, exclusion can be ordered under Federal Procedure Rule 26(c) "when appropriate." If exclusion is so ordered, "consideration should be given as to whether the excluded witnesses likewise should be precluded from reading, or being otherwise informed about, the testimony given in the earlier depositions."² Thus, Federal Evidence Rule 615 does not apply at depositions. Its effect, however, could be invoked via a protective order motion under Federal Procedure Rule 26(c)(1)(E).

Precluding Review?

That provision says that, for good cause, a court may issue an order to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense, including " . . . designating the persons who may be present while the discovery is conducted." This could be the springboard for implementing Rule 30's 1993 Advisory Committee Note's advice that, if granted, the protective order should consider "whether the excluded witnesses likewise should be precluded from reading or being otherwise informed about the testimony given in the earlier depositions."

Plaintiffs argued here that the defendant's extensive preparation of witnesses suggested they were "preparing their own testimony in conformity" with the prior depositions. But the court said that such speculation did not meet the burden of showing "good cause" under Rule 26(c)(1). A request for a protective order "must be illustrated with 'a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.'"³

What happens at trial, however? What if a party invokes Federal Evidence Rule 615 at trial arguing that the prospective witness has reviewed the portion of another person's videotaped deposition that has been used as trial testimony? The U.S. magistrate judge here observed that, in that case, the trial court "will need to consider any impact on that prospective witness' ability to testify." He cited two U.S. Court of Appeals for the Sixth Circuit decisions noting that the circuits disagree on whether Evidence Rule 615 extends beyond the courtroom.⁴

It may be seen, therefore, that a simple procedural thought - the potential of excluding deposition witnesses from reviewing prior deposition testimony by others - can have some rippling effects. We have noted here that precluding such review is feasible but not easy to achieve. You have to move for such relief. Even then, you don't get it automatically. You have to show "good cause." Even if you don't make the motion, the issue nevertheless could surface at trial, depending on applicable circuit law, if the trial court is addressed on the question in the context of invoking Evidence Rule 615.

The objecting party seemingly would urge that the prospective witness' ability to testify has been impacted by his or her review of that portion of a deposition that was used as trial testimony.

There are some sophisticated strategic nuances here, a kind of potential war game or tactical chess match. Thus, a party might seek to head off a deposition review by a witness being prepared to conform with earlier testimony or, rather, lie in wait until trial and take a risky chance on knocking out the witness' testimony by trying to invoke Evidence Rule 615. Conversely, the opponent party could resist a protective order motion made under Procedure Rule 26(c)(1)(E) and win, only to possibly be snared at trial under Evidence Rule 615 because the prospective witness' prior review of deposition testimony actually used at trial now is deemed by the court to impact on that prospective witness' ability to testify.

Ahhh, . . . the beauty, subtlety and art of trial warfare!

Taxable Costs

Sometimes an award of taxable costs against a losing party in federal courts can be substantial. Reasonable costs can be awarded under 28 U.S.C. §1920 for such items as copies, computerized research, summonses, subpoenas, delivery services and a videorecorded deposition. But what if a party ordered both a video-recording plus a stenographic transcript of the same deposition? Can the expense of both versions be awarded as costs? This issue was decided recently by the Seventh Circuit, as a matter of first impression, in Little v. Mitsubishi Motors North America Inc.,⁵ an employment discrimination case.

Plaintiff lost on a summary judgment motion and appealed the award of costs calling it unreasonable. The appellate court affirmed, however, dallying only to discuss the issue of whether costs of both a video-recording and a stenographic transcript of the same deposition are authorized under the current rules. The appellate panel held, "yes," principally because of a 1993 amendment to the then Federal Rule of Civil Procedure 30(b)(4). Prior to 1994, the rule stated that when a deposition was recorded by nonstenographic means, "a party may arrange to have a stenographic transcription made at the party's own expense." The 1993 amendments deleted the phrase "at the party's own expense."

Since the text of the rule is the most reliable indicator of the rule-makers' intent, removal of the operative language that earlier had barred courts from taxing such costs, now was viewed as allowing the costs of both items to be taxed to the losing party. The court observed that two sister circuits, the Tenth and Eleventh, had held such costs to be authorized.⁶ Nor is the ordering of a stenographic transcript when the deposition is videotaped some sort of mindless largesse. 28 U.S.C. §1920(2) authorizes costs for transcripts "necessarily obtained for use in the case."

Most transcripts of videorecorded depositions will fall into this category, said the court. For example, Federal Civil Procedure Rule 26(a)(3)(A)(ii) requires a party intending to use deposition testimony at trial to "provide to the other parties and promptly file" a transcript of the pertinent parts of the deposition if it was not recorded stenographically. Similarly, under Federal Civil Procedure Rule 32(c), "a party must provide a transcript of any deposition testimony the party offers" at a hearing or trial. Here, defendant used plaintiff's videorecorded deposition to support its motion for summary judgment so the transcript was necessarily obtained for use in the case.

Deposition Corrections

In Estate of Johnel Moore v. Dixon,⁷ the decedent had donated some $708,000 to what defendants represented to be a charitable organization. Alleging fraud and other torts, the estate sought recovery of the funds. The estate deposed defendant's bookkeeper and secretary, Ms. Conner, who testified on at least 10 different occasions that she was defendant's employee. Some time later, however, Ms. Conner reviewed her deposition transcript and wished to "correct" portions of her transcript. In particular, she wished to replace her testimony that she was an employee with testimony that she was an independent contractor. Thus, she submitted a signed errata sheet listing the "corrections."

Upon receipt of the errata sheet, the estate immediately filed a motion to strike the corrections. The motion argued that this was an impermissible change of the substance of her deposition testimony under Seventh Circuit precedent interpreting Federal Civil Procedure Rule 30(e) which permits deponents to sign a statement reciting changes to a deposition transcript and the reasons for making them.

However, there is a split in federal case law. Some courts narrowly read Rule 30(e) to permit only the correction of typographical and transcriptional errors. This is the view in the Seventh and Tenth circuits. Some courts, however, broadly read Rule 30(e) to not only permit changes in substance but to permit even contradictions to deposition testimony.⁸

In the Seventh Circuit, a "change of substance" which actually contradicts the transcript is not permissible unless it plausibly appears to be the correction of an error in transcription, such as dropping the word "not." Nevertheless, this blanket rule does have some exceptions. Thus, an errata sheet can be considered when it is construed as a "post-deposition affidavit" in a limited number of circumstances such as, when a post-deposition affidavit (or errata sheet) contradicts prior testimony in order to "clarify ambiguous or confusing deposition testimony" or when the subsequent conflicting information is based on newly discovered evidence.

Ms. Conner's corrections clearly contradicted her deposition testimony (substituting independent contractor for employee) and could not amount to mere correction of an error in transcription such as dropping a "not." Thus, the errata sheet may only be accepted if the corrections fall within an exception to the general rule. But the corrections here were not meant to clarify confusing testimony. The deposition recitations were clear. A mere "misstatement" does not qualify as a limited circumstance that would allow such corrections. Accordingly, the deposition corrections had to be stricken. The transcript accurately depicted what Ms. Conner testified to at the time of the deposition. As the court observed, "A deposition is not a take home examination."⁹

Backup Audiotapes

Sometimes court reporters at hearings or trials create a stenographic transcript as well as an audiotape to serve as a backup. What is the status of such audiotapes? Are they part of the official court record? If there is a discrepancy or question about the stenographic transcript's accuracy, can the adversely affected party compel production of the reporter's backup audiotape to verify the transcript's purported error? A recent Fifth Circuit decision, Cadle Co. v. Dennis (In re Pratt),¹⁰ discusses these interesting issues in the context of a dispute regarding what was said at a bankruptcy hearing.

The losing party in an adversary action against the debtor moved for relief from the judgment and for sanctions against opposing counsel. At a hearing on these motions the court reporter transcribed the proceedings and made a backup audiotape. The losing party later disputed the accuracy of the transcript and moved to compel the court reporter to produce the audiotapes. The reporter moved to quash and won in the bankruptcy court. The district court affirmed and the matter was appealed. The circuit court affirmed.

While courts have recognized a common law right to inspect and copy judicial records, the right is not absolute. 28 U.S.C. §753 requires that court proceedings be recorded by a reliable method, including stenographic means or audiotape, and requires the court reporter to file the "original records" with the court. Do backup tapes constitute judicial records? A Seventh Circuit decision earlier observed that backup tapes are not an original record of proceedings, nor are they filed with the court.¹¹ Although a party may obtain audiotapes that are original records, backup tapes may only be obtained if there is reason to doubt the accuracy of the stenographic transcript.

Here the complaining party did not show a reason to doubt the accuracy of the reporter's transcript. 28 U.S.C. §753(b) provides that the transcript certified by the reporter "shall be deemed prima facie a correct statement of the testimony taken and proceedings had." At the evidentiary hearing, the bankruptcy judge found that the transcript was not altered, that the court reporter testified credibly that the transcript accurately reflected the earlier ruling, and that nothing was shown to give the court a reason to believe the transcript did not comport with the hearing. For the appellate court, there was no showing that the bankruptcy court erred in reaching those findings and the record provided no reason to doubt the accuracy of the transcript. Accordingly, the production of the audiotapes could not be compelled.

Michael Hoenig is a member of Herzfeld & Rubin.

Endnotes:
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1. 2008 U.S. Dist. LEXIS 3865 (E.D. Ky. Jan. 17, 2008) (U.S. Mag. J. James B. Todd).
2. Id. LEXIS at *29 (quoting Advisory Committee Note).
3. Id. LEXIS at *31 (quoting from prior case law).
4. Id. LEXIS at *30 (citing as noting the disagreement among the circuits, but not deciding the issue, United States v. Solario, 337 F.3d 580, 592-93 (6th Cir. 2003); United States v. Moore, 93 Fed.Appx. 887, 894 (6th Cir. 2004)).

5. 514 F.3d 699 (7th Cir. 2008).
6. 514 F.3d at 703 (citing Tilton v. Capital Cities/ABC Inc., 115 F.3d 1471, 1478 (10th Cir. 1997); Morrison v. Reichold Chems. Inc., 97 F.3d 460, 464-65 n. 5 (11th Cir. 1996)).

7. 2007 U.S. Dist. LEXIS 91604 (E.D. Wis. Dec. 12, 2007).
8. Id. LEXIS at *5 (citing two district court cases from Texas and Maine).
9. Id. LEXIS at *8.
10. 511 F.3d 483 (5th Cir. 2007), pet. for cert. filed March 17, 2008 (No. 07-1203).
11. 511 F.3d at 485 and n. 2 (citing Smith v. U.S. District Court Officers, 203 F.3d 440, 441-42 (7th Cir. 2000); Regulations issued by the Judicial Conference of the United States stating that a reporter's backup tapes are the personal property of the reporter to which there is no public entitlement with limited exceptions).