Video Recording a Deposition, Part 4: If Counsel Records, Rule 30(f)(3) Applies

O’Boyle v. Sweetapple addressed the next question that arises if opposing counsel records the deposition himself: how do the other parties get a copy?[1]  All the depositions in the case had been stenographically recorded.  However, Plaintiff noticed every deposition he took as a “video deposition” and also recorded it “himself using personal recording cameras.”  “Plaintiff has also audio-video recorded the depositions noticed by other parties even if the depositions were not actually noticed as video depositions.”  Defendant did not object to this method of recording but later wanted copies of the recordings.  Plaintiff did not want to provide them.

Rule 30(f)(3) states the Rule 28 “officer must retain the stenographic notes of a deposition taken stenographically or a copy of the recording of a deposition taken by another method. When paid reasonable charges, the officer must furnish a copy of the transcript or recording to any party or the deponent.”  Plaintiff argued he was not a Rule 28 officer, so Rule 30(f)(3) did not apply to him.  The argument was unpersuasive.  The court found no case law supporting Plaintiff’s argument

probably because it is so clear that all parties are entitled to a court reporter’s transcript and audio-video recording of a video deposition taken in a case. The fact that Plaintiff decided to personally audio-video record the depositions he noticed as video depositions in this case, instead of hiring a professional stenographer, does not change this result.

O’Boyle also generated a practical tip: object promptly.  The parties should “have—at the outset of the depositions—discussed the recording issue and made a good faith attempt to agree on the audio-video recording procedure, who would perform the recordings, the availability of the recordings to all parties upon request, and payment of the costs of duplication.”  If no agreement could be reached, the issue should have been brought to the court’s attention before the depositions began and “the Court would have either ordered Plaintiff to use a professional videographer or would have put strict requirements in place, including the availability of all audio-video recordings to all parties, in order to govern the use of a non-professional videographer.”

[1] No. 14-cv-81250, 2016 U.S. Dist. LEXIS 92685 (S.D. Fla. June 30, 2016).