| by Heather Duncan, Esq.
Generally, a deposition transcript and exhibits are part of the record of a case and may be disclosed accordingly. Absent a stipulation and protective order, testimony will automatically become part of the public record when the deposition transcript is lodged or filed with the court.
In cases involving trade secrets or where it is anticipated that legally protected information will be disclosed, a stipulation and protective order should be put in place prior to beginning discovery. Depending upon the type of case, the protective order may allow different levels of protection or may allow for after-the-fact designation. If the protective order allows for designation after the deposition has been transcribed, it may be a good idea to agree that the transcripts are to be sent in an electronic format only until the final designations are in place. It is always helpful to bring a copy of an applicable protective order to the deposition, have it marked as an exhibit and let the court reporter know of any special provisions that might affect the production of the transcript.
Protective orders are case-specific and vary greatly. In an effort to simplify the process the Los Angeles Superior Court has model protective orders that can serve as a starting point for many cases. The LASC forms are located at http://www.lacourt.org/division/civil/CI0043.aspx.
Not having a stipulation and protective order in place before a deposition can be problematic if the testimony contains information that you believe should be kept confidential and the parties are unable to reach an agreement at the deposition. In the event that such a dispute arises at the deposition and cannot be resolved, any attorney or deponent may suspend the deposition and move the court for a protective order under California Code of Civil Procedure Section 2025.420.