LEL Flash | Issue: May 2016

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Issue: May 2016

Special Feature

Benefits and Limits of Videotaping Your Own Depositions

Emily Nugent practices employment law in Oakland and believes every deposition deserves to be its own movie.

Increasingly, attorneys are choosing to videotape depositions themselves rather than hiring an outside vendor. The main impetus for attorneys to videotape the depositions they take is to save on costs, but that benefit potentially flows to opposing counsel too, who get to obtain their witnesses' deposition videos directly from the DIY attorney at little to no cost instead of having to pay the standard fees charged by a "professional" videographer. Despite this cost benefit, some opposing counsel still object to an attorney taking a deposition while simultaneously acting as the videographer or having another member of her firm tape it. To what extent are these objections valid? Does federal law limit the ability of attorneys to videotape depositions in house?author photo

In California where I practice, the civil procedure rules are clear. There are few proscriptions on attorneys videotaping depositions they take, or having a member of their firm do it, so long as the operator of the video recording devices is competent to set up and operate the equipment. The only three caveats in California prohibiting an attorney, or an employee of the attorney's firm, from simultaneously taking and videoing a deposition are: if the deponent is testifying as an expert; if the deponent is a treating or consulting physician; or, if the videographer is also the deposition officer, i.e., the court reporter. Not many, or any, firms employ in-house stenographers, so it is difficult to imagine the latter scenario, but the California rules contemplate the scenario anyway.

On its face, the FRCP is murkier when it comes to an attorney's right to simultaneously take a deposition and operate the video equipment. Several cases though, beginning with Ott v. The Stipe Law Firm, 169 F.R.D. 380 (E.D. Okla. 1996), have clarified the circumstances when it is allowed, and provide helpful guidance to eliminate acrimony and encourage collegiality around the issue.

First the rules: FRCP 30(b)(3) expressly authorizes that deposition testimony "may be recorded by audio, audiovisual or stenographic means."  The party taking the deposition can therefore record the deposition using any one or more of those methods, so long as the party notices it properly. Most attorneys who videotape the depositions they take do so in addition to recording the depositions stenographically.  Interestingly, the rules do not preclude a party from only recording a deposition by video. However, in that case, an attorney, or someone from her firm, may not operate the video equipment. This is because depositions under FRCP 28(a)(1)(A) must be conducted before "an officer authorized to administer oaths either by federal law or by the law in the place of examination." According to FRCP 28(c), the deposition officer may not be "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."

The interaction between these rules played out in Ott, where the defendant objected to several depositions which were recorded by video only without a stenographer present. During two of the depositions, the plaintiff herself administered the oath to the deponent while her attorney operated the video equipment. The Eastern District Court of Oklahoma properly found those two depositions inadmissible because of the clear violation of FRCP 28(c)--Ms. Ott obviously had a financial interest in the case. By contrast, the court found the other seven depositions for which plaintiff's counsel operated the video camera proper, specifying FRCP 28(a) "does not disqualify plaintiff's attorney from running the video taping equipment." Ott, 169 F.R.D. at 381. The Ott decision also pointed out that courts generally interpret FRCP 30 liberally and in a way that is "designed to promote, rather than hinder, the practice of recording discovery proceedings through the use of nonstenographic means." The Ott case came on the heels of the 1993 amendments to FRCP 30 allowing depositions to be recorded solely by video if the noticing party so choses, although the advisory committee notes urge attorneys who do so to also provide a transcript if they offer the recorded deposition as evidence at trial.

More recently, Pioneer Drive v. Nissan Diesel America, Inc., 262 F.R.D. 552 (D. Mont. 2009) addressed an opposing counsel's refusal to allow a deposing attorney to take and simultaneously videotape depositions. The deposing attorney properly noticed the depositions to be recorded "by video and by a court reporter stenographically," but when she showed up with her own video equipment, opposing counsel took a "my way or the highway" mentality and steadfastly refused to allow the depositions to go forward unless an "independent professional" videoed them at plaintiff's expense. The deposing attorney, who had traveled from Oregon to Texas to take a week of depositions in the case, reasonably decided it was more important for the depositions to go forward than to insist on videoing them herself and promptly hired a "professional" to the tune of $15,000 for the week. Once the depositions were over, the deposing attorney moved for sanctions against opposing counsel for impeding, delaying, or frustrating the depositions. The Montana District Court found in her favor and began its opinion this way: "Litigation can at times be trying. However, it is at the intersection of frustration and demand that the wise lawyer will check two axioms: (1) collegiality can displace cost, and (2) know the rules. The failure to heed these two universal principles gives rise to the current controversy." Pioneer Drive, 262 F.R.D. at 553-554.

The Pioneer Drive opinion is a must read for any attorney who either videotapes her deponents or whose clients are videotaped, which means all of us who litigate. It offers practical tips to facilitate smooth relations between counsel and explicitly states the, "‘my way or the highway' mentality has no place in resolving deposition recording disputes." Id. at 555.

Here are some tips from Pioneer Drive and my own practice:

  • Properly notice the deposition by stating all the ways it will be recorded.
  • Take the extra step of notifying opposing counsel in advance of your intent to videotape the deposition yourself or that a member of your firm will be operating the equipment.
  • Just before the deposition begins, offer to let opposing counsel see the framing of the deponent in the camera view to alleviate any concerns about objectivity of the recording
  • If you are opposing counsel and have concerns about accuracy and objectivity of the video recording, your remedy is to seek a protective order or move after the fact to strike the recording. Do not insist the deposition or its videotaped recording be stopped, or you may be liable for sanctions. Collegiality can displace cost!

Contents

Opening Page

Comments from the Chair
Finishing Up the Midwinter Season

Special Feature
Benefits and Limits of Videotaping Your Own Depositions

Feature
Government Update

Section News
Staff Member Spotlight: Brad Hoffman

Flash Co-Chairs:
Elaine Koch, Bryan Cave LLP | John Ho, Bond, Schoeneck and King, Employer Co-Chair | Lisa Gomez, Cohen Weiss and Simon, Union & Employee
Jennifer L. Liu, Liu Law PC, Employee | John Henderson, U.S. EEO Commission

American Bar Association Section of Labor and Employment Law
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