GR 9 COVER SHEET

Suggested Changes to

CIVIL RULE 30

A.             Name of Proponent: Byers & Anderson, Inc. dba B&A Litigation Services (B&A)

B.        Spokespersons:

Steven B. Crandall, JD, CLVS

Chief Executive Officer

2200 6th Avenue, Suite 425

Seattle, Washington 98121 253-627-6401

scrandall@balitigation.com

C.        Purpose: Amending CR 30(b)(8)(H) is necessary to eliminate an ambiguity that counsel are exploiting to record video depositions themselves without the assistance of an impartial professional legal videographer. Use of an impartial professional legal videographer ensures, inter alia, impartiality, accuracy, trustworthiness and professionalism during the examination, the privacy and safe keeping of a deponent’s information, and the impartiality of the video record.

It is also consistent with CR 30 (b)(4) that the testimony at a deposition may be recorded by other than stenographic means, the safeguards of CR 28(c) Disqualification for Interest, the equal terms of CR 28(d) Equal Terms Required, and the transcript certification requirements of CR 28(e) Final Certification of the Transcript.

CR 30(b)(8) Video recording of depositions, states in part:

Any party may video record the deposition of any party or witness without leave of court provided that written notice is served on all parties not less than 20 days before the deposition date, and specifically states that the deposition will be video recorded.

Counsel have misinterpreted CR 30(b)(8) to mean that they have an unrestricted right to video record a deposition without any rules or limitations other than the requirements set forth in subsection (b)(8). This interpretation is contrary to the rules and case law. Counsel read CR 30(b)(8) to mean “independent of” rather than “in addition to” to the other rules and regulations related to the taking of depositions.

By recording the deposition themselves or by using their own employees, counsel are interpreting the rules to allow that anyone can record the video deposition and that the disqualification for interest prohibitions in CR 28(b) apply only to the stenographic officer. Such an interpretation would allow recording by the attorney themselves, an employee of the law firm,an employee of one of the parties, a relative of one of the parties, or someone else with a financial interest in the outcome of the litigation. Such a position is against public policy, the court’s interest in the impartiality of the record, and the integrity of the judicial process.

CR 28(c) states:

Disqualification for Interest. No deposition shall be taken before a person who is a relative or employee or attorney or counsel of any of the parties, or is a relative or employee of such attorney or counsel, or is financially interested in the action.

Counsel interpret CR 28(c) narrowly to mean an “officer” as defined previously in the rule in order to reach the conclusion that this rule does not apply to the video operator identified in CR 30. Such an interpretation ignores the unambiguous use of the term “person.” CR 28 uses the language a “person” before whom a deposition may not be taken. Had the court wished to restrict this rule to only officers as defined in CR 28(a) they could have used the language, “No deposition shall be taken before an officer who is a relative or employee or attorney or counsel of any of the parties, or is a relative or employee of such attorney or counsel, or is financially interested in the action.” [Emphasis added.] They did not.

Counsel, further ignores the context within which rule 30(b)(8) was written.

CR 30(b)(4) states:

The parties may stipulate in writing or the court may upon motion order that the testimony at a deposition be recorded by other than stenographic means.

CR 30(b)(4) recognizes that the testimony at a deposition may be recorded by other than stenographic means while CR 30(b)(8)(H) makes a special exception for video recorded depositions so that stipulation or court order is not necessary for this particular method. It does not give counsel leave to ignore the requirements of CR 28 or the context of CR 30(b)(4).

Given the apparent ease of recording virtual depositions, one can easily imagine a scenario in which one, two, or more counsel each record the deposition and seek to introduce their video as representative of the video record at trial.

CR 30 (b)(8)(G) states:

Absent agreement of the parties or court order, if all or any part of the video recording will be offered at trial, the party offering it must order the stenographic record to be fully transcribed at that party's expense. A party intending to offer a video recording of a deposition in evidence shall notify all parties in writing of that intent and the parts of the deposition to be offered within sufficient time for a stenographic transcript to be prepared, and for objections to be made and ruled on before the trial or hearing. Objections to all or part of the deposition shall be made in writing within sufficient time to allow for rulings on them and for editing of the video recording. The court shall permit further designations of testimony and objections as fairness may require. In excluding objectionable testimony or comments or objections of counsel, the court may order that an edited copy of the video recording be made, or that the person playing the recording at trial suppress the objectionable portions of the recording. In no event, however, shall the original video recording be affected

by any editing process.

It has become standard practice to synchronize the deposition video to the court reporter’s transcript in order to create designations for use in trial and to eliminate objections from the video playback. The court reporter cannot ensure the accuracy of the video produced by counsel. In this case, you have a transcript, produced by an independent impartial officer who has a duty to produce an unbiased record being synchronized to a video being produced by one of the

party’s counsel who have a duty to zealously represent the interest of their client. When the synchronized video is played back in court it is often done without showing the written transcript and the video effectively stands in for the official record. Any jury could reasonably assume that the video they are seeing is an accurate record of the deponent’s testimony.

In Alcorn v City of Chicago, No. 17-cv-5859, F.R.D. 440 (N.D. Ill. 2020), the court addressed Plaintiff’s proposal to use a Zoom recording created without the use of an independent professional legal videographer. The court noted that:

Plaintiff's proposal in this case is untenable. If permitted, Plaintiff would obtain a certified transcript of the recording but an uncertified video recording of the deposition. Yet, Plaintiff seeks to use both the transcript and the recording as equals at her discretion. As a result, the process outlined in the Federal Rules of Civil Procedure to ensure the integrity of the deposition would be bypassed. The court reporter would not be managing the appearance or demeanor of anyone on the screen, any edits to the recording, or the sealing and maintaining of the recording. There would be no certification that the Zoom video recording accurately captures the testimony of the deponent. Plaintiff's proposal essentially seeks an end-run around the procedures outlined in Rule 30.

CR 30(b)(8)(D) states:

Unless otherwise stipulated to by the parties, the expense of video recording shall be borne by the noting party and shall not be taxed as costs. Any party, at that party's expense, may obtain a copy of the video recording.

CR 28(d) Equal Terms Required states in part:

Any arrangement concerning court reporting services or fees in a case shall be offered to all parties on equal terms.

By allowing one party to control the video recording of the deposition the court would set up a situation in which counsel woud have to purchase the recording from opposing counsel. There would be no limitation on what the recording party could charge. Such a situation would be at odds with the equal terms requirement of CR 28(d) and could result in significant litigation cost shifting.

Legal videography has been a service offered by court reporting agencies since its introduction in the 1980s. As such it must be offered to all parties on equal terms. Until the introduction of remote depositions and the ease of self-recording, the issue of counsel recording their own depositions rarely arose. The specialized equipment and knowledge made such a practice unthinkable.

Professional legal videographers are trained to conduct depositions under CR 30 and recording of physical and mental examination of persons under CR 35. As such they consider themselves to be officers of the court with a duty to create an impartial video record. They adhere to a number of standards and best practices. In no case do they simply hit “record,” whether conducting a deposition in person or remotely. They use specialized software, equipment, and knowledge to produce deposition recordings. Utilizing the services of professional legal videographers not only guarantees the quality and integrity of the recording, it also ensures the impartiality of the person making the recording.

In Brizuela v City of Seattle, the Superior Court of the State of Washington for King County, Case No. 14-2-05875-6SEA, plaintiff sought to use an uncertified videographer with limited experience in conducting CR 35 examinations. The defense filed a motion to compel that any videotaping be performed by a certified, professional videographer. The Honorable Theresa B. Doyle ordered that “if the plaintiff wishes to videotape either examination…he will employ a licensed professional videographer.”

D.        Hearing: B&A does not believe a public hearing is needed.

E.         Expedited Consideration: B&A believes that the Court’s Order Regarding Court Operations After October 31, 2022 has created exceptional circumstances which justify expedited consideration.

F.         Supporting Materials:

Declaration of Steven B. Crandall in support of suggested changes to CR 28(b) and CR 30(b)(8)(H).