Court reporters and legal videographers need to know when to be on and off the record. The first thing the court reporter needs to know is what jurisdiction the deposition they are reporting falls under. Is it a California state court case? Is it a Federal district court case? Is it a FINRA arbitration?
Under the California Code of Civil Procedure, CCP 2025.470, the court reporter may not go off the record without stipulation by all counsel unless a party or the deponent moves for a protective order. Unless the court reporter hears the two words “protective order,” she/he must stay on the record. I would suggest that the videographer would fall under the same rule.
Under Rule 30(d)(3) of the Federal Rules of Civil Procedure a litigant may suspend a deposition at any point for the purpose of filing a motion to terminate or limit the deposition on the grounds that it is being conducted in a manner that unreasonably annoys, embarrasses or oppresses the deponent or the litigant. If such a suspension is sought, the deposition remains postponed until such time as the court issues an order.
I believe a best practice in a district court case or any deposition that falls under the Federal Rules is for the court reporter/videographer to stay on the record until all counsel agree to go off the record or the parties physically leave the deposition (and the parking lot). The party or parties need to really leave, not just threaten to leave and walk out for a couple of minutes. As a court reporter I wait for the remaining party to give me permission to pack up and leave.
As I have written in a previous blog, at a FINRA arbitration, the court reporter goes off and on the record at the request of whomever is hiring the court reporter unless the court reporter has been designated by the arbitration panel to be keeping the official record (rather than the tape recording being the official record).
When asked to go off the record, I get a verbal agreement by all parties, I put my hands up in the air, and say in a strong voice with a smile, “We are off the record.” I want to always guarantee there was no misunderstanding and that no one can later say, “I never agreed to go off the record. I wanted you to transcribe the part when John Smith called me a blankety-blank.”
Court reporters have a duty to protect the transcript and know when to be on or off the record.