Can a Notary Take a Deposition?

Can you reduce deposition costs by eliminating the court reporter and just using a notary to video record the deposition?  A long time reader emailed that question to me.  He appeared for another party’s video recorded deposition.  There was a videographer, but no court reporter.  The videographer explained he is a notary so he can swear in the witness.  I am aware of at least one company in town that provides this service, but will that process lead to admissible testimony?  The reader sent me the answer he later found.

The Deposition is Worthless

The problem is not necessarily with the videographer, for all the reasons described at length in prior posts about video recording.  The problem is with the notary.  FRCP 28(a)(1) establishes before whom a deposition may be taken in a federal case, NRCP 28(a)(1) is substantively identical.

Within the United States or a territory or insular possession subject to United States jurisdiction, a deposition must be taken before:
(A) an officer authorized to administer oaths either by federal law or by the law in the place of examination; or
(B) a person appointed by the court where the action is pending to administer oaths and take testimony.

In Nevada, a notary is not authorized to take a deposition.  The Nevada Secretary of State’s notary division has expressly answered that question in a FAQs page.

Can I take a deposition?
The authority to take a deposition was removed from the list of notarial acts in the law by the 1995 Legislature. Certified court reporters who have been appointed notaries public with limited powers take depositions.

What does this mean?  If you appear for a deposition and encounter a situation like this reader did, object and do not proceed until a certified court reporter attends.  The problem is the notary cannot put a witness under oath and that fact may lead to admissibility problems later on.  Some may think the better strategy is to wait and object to using the testimony later because it is a strategic advantage.  I suspect that strategy will not work because, by failing to object at the time, any objection to the procedure is likely waived.

As a final caveat, this post is jurisdiction specific, as notary licensing is a matter of state law.  I encourage readers to check their jurisdiction’s laws on this topic.