Video Recording a Deposition, Part 1: It’s More Complicated Than You Think

This is the first in a series of posts that discuss what seems like a simple question: who may video record a deposition?  When video recording technology was invented, this probably was not a question that bothered anyone given the expense.  However, as the technology improved the cost of recording lessened.  Now, nearly every lawyer with whom I work has a smart phone or tablet capable of video recording.  Deciding who may record in this technological setting is far more difficult.

This post arose from a reader email.  The reader described a situation in a federal case where she would notice a deposition and then opposing counsel would cross-notice it, indicating intent to record it.  Opposing counsel would appear for the deposition, set up his iPad, and press record.  Can he do that?  This is not a situation I have encountered before, but I understand the motivation to eliminate the expense of a videographer.  I thought this would be a simple post.  Instead, I found myself staring at a rabbit hole and decided for inexplicable reasons to take the red pill, stay in Wonderland, and see how deep the hole went.  Big mistake, but by then it was too late.  It turns out deciding who may record is complicated and varies by jurisdiction, thus a series of posts resulted.  This post discusses the federal rules.  The next will discuss various decisions using those rules.

The Rules

Rule 28(a)(1) establishes before whom a deposition may be taken.

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

Rule 28(c) disqualifies certain people from being the officer before whom the deposition is taken.  “A deposition must not be taken before a person who is any party’s relative, employee, or attorney; who is related to or employed by any party’s attorney; or who is financially interested in the action.”

Rule 30(b)(3)(A) requires the noticing party to state how the testimony will be recorded.  “Unless the court orders otherwise, testimony may be recorded by audio, audiovisual, or stenographic means. The noticing party bears the recording costs. Any party may arrange to transcribe a deposition.”   Rule 30(b)(3)(B) permits other parties to cross-notice.  “With prior notice to the deponent and other parties, any party may designate another method for recording the testimony in addition to that specified in the original notice. That party bears the expense of the additional record or transcript unless the court orders otherwise.”  Finally, Rule 30(b)(5)  states the duties of the Rule 28 “officer.”

(A) Before the Deposition. Unless the parties stipulate otherwise, a deposition must be conducted before an officer appointed or designated under Rule 28. The officer must begin the deposition with an on-the-record statement that includes:
(i) the officer’s name and business address;
(ii) the date, time, and place of the deposition;
(iii) the deponent’s name;
(iv) the officer’s administration of the oath or affirmation to the deponent; and
(v) the identity of all persons present.

(B) Conducting the Deposition; Avoiding Distortion. If the deposition is recorded nonstenographically, the officer must repeat the items in Rule 30(b)(5)(A)(i)–(iii) at the beginning of each unit of the recording medium. The deponent’s and attorneys’ appearance or demeanor must not be distorted through recording techniques.

(C) After the Deposition. At the end of a deposition, the officer must state on the record that the deposition is complete and must set out any stipulations made by the attorneys about custody of the transcript or recording and of the exhibits, or about any other pertinent matters.

The 1993 Advisory Committee stated “[r]evised paragraph (4) requires that all depositions be recorded by an officer designated or appointed under Rule 28 and contains special provisions designed to provide basic safeguards to assure the utility and integrity of recordings taken other than stenographically.”  Paragraph 4 was later moved to paragraph 5, where it remains at least as of this post.  The 2007 Advisory Committee noted “[t]he right to arrange a deposition transcription should be open to any party, regardless of the means of recording and regardless of who noticed the deposition.”

Absolutely none of that easily answers the abstract question (who may record the deposition) or even the specific question (may a lawyer video record a deposition using an iPad).  Unsurprisingly, as video recording has become cheaper and technologically simpler, courts have been asked to decide who may video record a deposition.  The next post begins discussing case law on these questions.