Video Recording a Deposition, Part 2: Counsel May Not Personally Record the Deposition

The previous post discussed the rules that determine before whom a deposition may be taken.  This post begins a discussion of various rulings interpreting these rules.  Some courts forbid counsel from recording the deposition on their own or placed significant restrictions on how the record could be used.

In Schoolcraft v. City of N.Y.

Medical Defendants have moved the Court for a protective order enjoining Plaintiff’s method of video recording the depositions of the Medical Defendants. Plaintiff’s attorney was scheduled to depose Aldana-Bernier on October 25, 2013. For the deposition, Plaintiff’s attorney brought his personal Sony Handycam video camera, and indicated at the deposition that he intended to use the video camera to videotape the deposition. Aldana-Bernier’s attorney objected to Plaintiff’s use of the camera, objecting specifically to the lack of a Fed. R. Civ. P. 30 notice of intent to videotape and the methods used by Plaintiff’s counsel for the deposition. An official court recorder was present.[1]

The failure to notice the intent to video record was fatal to the recording.  The bigger question for moving forward in the case was “whether Plaintiff’s attorney can himself operate a video recorder to record a deposition if proper notice is served….”[2]  The court noted “Plaintiff’s method of video recording … does not follow the requirements and safeguards” the FRCP require.[3]  He did not satisfy Rule 30(b)(5), including the requirements in Rule 30(b)(5)(A).  He also operated the recorder himself, “and not a Fed. R. Civ. P. 28 officer, since Fed. R. Civ. P. 28(c) disqualifies an attorney for the parties to qualify as an officer.”[4]

Other logistical issues indicate difficulty in Plaintiff’s method of videotaping. This instant case contains several layers of confidentiality, and the parties have faced and will face difficulty in characterizing the level of confidentiality that applies for each portion of a testimony. Currently, confidential testimony is transcribed into a separate transcript from non-confidential testimony. Plaintiff’s counsel uses a single video camera, and for the confidential portions of testimony, counsel states the video is going to the confidential portion, stops the recording and then continues the recording. Plaintiff’s counsel has not indicated how the recordings will be edited to separate the various confidentiality levels. The Medical Defendants also note of technical issues. There are no microphones for the video camera other than the internal microphone built into the camera. There will be no way to ascertain as to who is speaking on the tape at any particular time unless it was the witness. Plaintiff’s counsel has also failed to provide City Defendants with a copy of the recording that was made for Marino’s deposition, while the court reporter has already provided copies of the transcript. Plaintiff’s counsel also failed to record portions of Lauterborn’s deposition when the video camera’s memory ran out prior to the deposition’s completion. The video camera was also left on and captured off the record discussions between counsel in the Marino and Lauterborn depositions. Medical Defendants express concern that Plaintiff’s counsel has made several mistakes that may prevent matching the video with the stenographic record transcript.[5]

Finally, the court also noted “[g]iven the manner in which Plaintiff’s counsel has chosen to operate the video camera there is a risk that any videos taken pursuant to such methods is subject to interpretation.”[6]

Ultimately, the plaintiff was allowed to video record the depositions in his preferred manner if properly noticed, but with an important caveat.  “Although the Plaintiff may take video recordings in depositions for his own purposes, those recordings taken by counsel will not be admissible.”[7]

Other courts have also evaluated this issue.  In C.G. v. Winslow Twp. Bd. of Educ. the notices Plaintiff served for depositions stated they would be transcribed “and ‘recorded by video,’ [but] the notices did not state that Plaintiffs’ counsel planned to do the recording himself.   In addition, the parties never stipulated that Plaintiffs’ counsel could record the depositions himself.”[8]  When the depositions convened, a court reporter was present who had only stenographic recording capability.  Then “Plaintiffs’ counsel set up a camera on his own laptop computer to record the deposition, but Defense counsel objected.”   This led to a call with the Magistrate Judge, who refused to allow the video recording.   He “explained that the only individuals ‘authorized pursuant to the federal rules of civil procedure to audio or video a deposition [under Rules 30, 31, and 32] are those designated by Rules 28 and 29.’”  The plaintiff later objected to this ruling before the district court and sought to retake the depositions on video but the district court did not find an abuse of discretion.

In Arenas v. Unified Sch. Dist. No. 223 the defendant sought “a protective order that would preclude Plaintiff’s counsel from operating video equipment during the Rule 30(b)(6) deposition Plaintiff has noticed.”[9]  The issue arose because the notice stated “”the deposition will be videotaped by Plaintiff’s counsel.”  Apparently the District of Kansas has deposition guidelines that state “[t]he operator of the videotape recording equipment shall be subject to the provisions of” Rule 28.  The court granted the protective order barring Plaintiff’s counsel from operating the video recording equipment.

The disputed depositions in Morris v. Long “were taken before Plaintiff’s attorney, who was neither an officer authorized to administer oaths nor a person appointed by the court.”[10]  There was no court reporter present.  Defendant objected to the method of recording, but allowed the depositions to go forward and later moved to exclude the depositions entirely.

Plaintiff later argued this was a mere technicality because the video record itself ensured impartiality.  This argument did not work.  Citing the 1993 Advisory Committee notes, “[t]he plain language of this rule is clear: absent a waiver, a deposition must be conducted before an officer appointed or designated under Rule 28.”  The depositions were excluded from trial.

[1] 296 F.R.D. 231, 238-39 (S.D.N.Y. 2013).
[2] Id. at 239.
[3] Id.
[4] Id.
[5] Id. at 239-40.
[6] Id. at 240.
[7] Id.
[8] No. 13-6278, 2015 U.S. Dist. LEXIS 78158, 2015 WL 3794578 (D.N.J. June 17, 2015).
[9] No. 15-cv-9359, 2016 U.S. Dist. LEXIS 143338 (D. Kan. Oct. 17, 2016).
[10] No. 1:08-cv-1422, 2012 U.S. Dist. LEXIS 112368, 2012 WL 3276938 (E.D. Cal. Aug. 8, 2012).