Contesting Testimonial Subpoenas: Why a Court Reporter Should Not Be Required to Testify About Extrinsic Matters
BY THOMAS D. SCLAFANI, ESQ.*
So, you end the day weary but happy that you took down a six hour deposition, and both sides have ordered the transcript on an expedited basis. This was definitely a high yield day with the promise of more to come, because this was the first of twenty (20) depositions in this case. But your sense of tranquility is short-lived, because the attorney for one of parties in the lawsuit has decided to subpoena you to testify about your observations of the witness during the deposition.
So, you end the day weary but happy that you took down a six hour deposition, and both sides have ordered the transcript on an expedited basis. This was definitely a high yield day with the promise of more to come, because this was the first of twenty (20) depositions in this case. But your sense of tranquility is short-lived, because the attorney for one of parties in the lawsuit has decided to subpoena you to testify about your observations of the witness during the deposition. Counsel tells you, after the subpoena is served, that he would like you to verify that the witness frequently looked over to his lawyer sitting next to him before answering certain questions, and that the witness appeared to be nervous and shaken by a number of the questions posed by opposing counsel. Or, instead of being served with a subpoena, one of the lawyers present at the deposition sends you a proposed affidavit for your signature which sets forth your “observations” of the witness’ demeanor while you were reporting the witness’ testimony.
What are the practical problems associated with this all-too-frequent scenario and, more importantly, do you have any recourse against providing this type of information? The most obvious result of being subpoenaed is that you are now disqualified from taking any further testimony in that case. Even worse, you will miss one or more days of work waiting to testify, and the lawyers on either side of the controversy may decide not to use you in future cases. Put simply, there appears to be no upside to your being subpoenaed to testify at a hearing or to provide an affidavit in support of a motion. So, what can you do?
A recent case on point involved a court reporter who was subpoenaed to testify at an evidentiary hearing about the demeanor of the witness while the proceeding was taking place. The court reporter felt uncomfortable being placed in the position of being a partisan witness, especially since there were three other witnesses to the proceeding who could have provided the same testimony, assuming such testimony was admissible. After unsuccessfully attempting to persuade the lawyer who issued the subpoena to withdraw it, I filed a motion to quash the subpoena, or alternatively for a protective order, against requiring the court reporter to testify about any matters while she was taking down the testimony.
As it turns out, there are no cases in Florida directly on point, but there are still arguments to be made. For example, it is a breach of ethics for a court reporter to be required to become a witness to extrinsic matters while taking down testimony, according to Advisory Opinion 31 from the National Court Reporters Association (“NCRA”). That organization’s Committee on Professional Ethics resolves ethical questions from court reporters and issues opinions on which the profession may rely. The Florida Bar provides a similar service for attorneys who make ethics-related inquires.
Advisory Opinion 31 resolved three similar factual scenarios, the third of which involved a court reporter who was asked to contemporaneously record her personal observations while also taking down the proceedings. The Committee on Professional Ethics concluded that a reporter’s description on the record of non-verbal communications, events or gestures violates independently each of three referenced provisions of the Code of Professional Ethics and jeopardizes the court reporter’s role as an officer of the court: the first provision of the code of Professional Ethics, which mandates that a reporter must be fair and impartial to each participant in all aspects of the reported proceedings; provision number two, which cautions the reporter to avoid situations that may give rise to a conflict of interest; and the third provision which provides that the reporter must guard against the appearance of impropriety and of actual impropriety. The Committee stated in part as follows: “The role of the court reporter in reporting a proceeding is to preserve the spoken word on the record and not to function as factual witness of one party to the proceedings. When a reporter is intentionally placed in the position of being a factual witness at the direction of counsel from one party to the proceeding, that reporter may be viewed as an advocate for one party over the other.”
The NCRA’s Advisory Opinion 44 was also helpful in that the Committee on Professional Ethics concluded that a court reporter could not also act as a videographer in the same proceeding. The Committee stated: “The paramount duty of the reporter is to produce an accurate record. For a reporter to agree to perform another duty would take away from the reporter’s ability to focus on reporting, the proceeding violates the reporter’s ethical duties.”
Florida Statute 27.0050(1), provides that official court reporters “constitute an arm of the court.” Case law also describes court reporters in Florida as being “officers of the court”. As such, it is critical that the court reporter maintain his/her objectivity just as the judge and his staff.
If a lawyer believes that it would be important to the case that there be a record of a witness’ demeanor during a deposition, Florida law provides litigants with the opportunity to record that which would be the subject of a court reporter’s observations without having to bother the court reporter. Rule 1.310(b)(4) of the Florida Rules of Civil Procedure provides that any party to a lawsuit has the absolute right to record a deposition by videotape without leave of court or stipulation of the parties simply by following the procedures outlined in the rule which deal with notice and the procedure to be followed. An attorney should not be able to cure his lack of foresight in failing to videotape a deposition by forcing the court reporter to compromise his/her ethical responsibility.
The more difficult question is whether a court reporter can testify to an extraordinary occurrence while taking down testimony. Let’s say, for example, that the plaintiff is present during the defendant’s deposition, and during the testimony, the defendant lunges across the table and strikes the plaintiff. Can you be called to testify about the defendant striking the plaintiff (assuming you saw the punch)? As we have seen, there is no law or rule that precludes you from being subpoenaed. I would argue that the matter could easily be handled by the lawyer for the plaintiff who should describe in detail what the defendant did, and you would take down the description. Defendant’s counsel may have his own rendition of what occurred, which he could describe in detail for the record. Remember, it is the lawyer’s responsibility to make the record and the court reporter’s job to accurately report it.
So what was the result of the case referred to at the beginning of this article? The judge granted the protective order which precluded any party from asking questions about extrinsic matters that occurred during the course of the proceeding she was reporting, but the reporter would be required to testify about any off-the-record conversations before and after the proceeding. As it turned out, both sides released the court reporter from the subpoena.
What is the moral of the story? Clearly, the court reporter is always required to testify about the accuracy of the reporter’s notes and/or transcript and of conversations or observations made before or after the taking of a deposition. However, it is equally clear that a court reporter should not be required to provide testimony about the action or demeanor of the person in the room while the court reporter was taking down testimony. The intervention of counsel for the court reporter and a well-prepared motion to quash should achieve the desired result. This is certainly a worthy issue for an appellate decision in the right case, because if successful, court reporters will no longer be faced with the practical and ethical dilemmas associated with being subpoenaed.