| by Heather Duncan, Esq.
STRICTLY OFF THE RECORD. . .
In this month’s post, Network Deposition Services would like to help clarify what constitutes grounds for going on and off the record at a deposition and how and when a deposition may be suspended.
During a deposition you are “on the record.” That means that the court reporter is transcribing everything that is being said by anyone in the deposition room and any legal videographer is recording the same. Simply stating “off the record,” is rarely, if ever, grounds for the court reporter to stop transcribing what is being said.
The reporter may have been hired by only one of the parties, but he or she remains a neutral officer of the court and may not take instructions on suspending or concluding the deposition from only one side.
As provided below, the rules for suspending a deposition under the California state and federal codes are slightly different.
The California Code of Civil Procedure section 2025.470 states very clearly that the reporter may not suspend the testimony without a stipulation of all counsel unless counsel, or a party demands that the reporter do so in order for that party or the deponent to move for a protective order on the ground that the examination is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party.
The Federal Rules of Civil Procedure do not specifically state that the reporter may not suspend or interrupt the deposition testimony. However, Rule 30(d)(3) states that if the deponent or a party wishes to move to terminate the deposition on the ground that the deposition is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party, the deposition must be suspended to allow the moving party the time necessary to obtain such an order from the court.
Unless all parties have stipulated, or one party has stated his or her intention to move for a protective order, it is best to assume that everything that is being said in the deposition room is being transcribed. If the court reporter is typing, you are most likely not off the record. If you need to say something confidential to your client it is always the best practice to do so in privacy, outside of the deposition room.