Can lawyers record oral depositions intended for litigation solely by video camera, or does the law require a court reporter to make the record?
Through Oct. 10, the Texas Office of the Attorney General (OAG) will accept briefs on that question. Recording depositions is a cost concern in litigation, because litigants must pay videographers or court reporters, and sometimes both, says Michele Henricks, director of the Court Reporters Certification Board (CRCB).
CRCB chairman Judge Bob Woodward requested the OAG opinion, which he says could impact the admissibility of depositions in court. He says he has seen cases where trial judges ruled as inadmissible videos not recorded by a certified court reporter. “If there’s an objection to a deposition because it wasn’t done by a certified shorthand reporter, it may be inadmissible. That’s not my opinion. I’ve just seen that in some cases,” Woodward says in an interview.
Woodward, judge of the 119th District Court in San Angelo, requested the AG opinion in an Aug. 31 letter, in which he writes that the CRCB’s “inclination” is for the OAG to enforce a statute that would require court reporters at depositions.
His letter highlights a conflict between Texas Government Code §52.021(f), which requires certified shorthand reporters to record depositions, and Texas Rule of Civil Procedure 199.1, which permits depositions recorded by nonstenographic means such as video. In the letter, Woodward notes the Texas Supreme Court can make rules of civil procedure that can repeal conflicting laws, although not “substantive” portions. In creating Rule 199.1, Woodward writes that the Supreme Court didn’t follow the proper procedure to notify the secretary of state that the rule, which took effect in 1999, repealed §52.021(f). The board also asks whether §52.021(f) is “procedural or substantive.”
OAG spokesman Tom Kelley writes in an email that briefs must reference the request number, RQ-0993-GA. People can email them to email@example.com or mail to Opinions Committee Chair Jason Boatright at P.O. Box 12548, Austin, 78711-4433. The office expects to issue an opinion by Feb. 29, 2012.
-- Angela Morris