Proposed Rules Archives

• Proposed Changes to CR 28 - Persons before whom Depositions may be Taken (in Word Format)
• Comments Received for CR 28 - Persons before whom Depositions may be Taken

Purpose:

The purpose of amending CR 28 as proposed is to maintain the neutrality and impartiality of the certified court reporter, to ensure that deposition transcripts are prepared by disinterested persons, and to ensure that deposition transcripts are offered to all parties on equal terms.

Unlike attorneys, court reporters are intended to be neutral officers of the court in our judicial system. At its core, their job is to create an accurate record of testimony given during depositions and court or administrative proceedings. But court reporting is also a business. And like all businesses, competitors are constantly looking for a leg up. In recent years some reporting agencies — particularly national firms — have resorted to what is called “third party contracting” to achieve that advantage.

Third party contracting refers to the situation in which a court reporting firm enters into multi-case contracts that provide preferred pricing and create advocatory relationships. The contracts are typically with insurance companies, large corporations and law firms and they provide discounted service in exchange for the former’s promise to use the court reporting firm. National firms are very aggressive in marketing these multi-case contracts. One national reporting firm, the subject of a lawsuit in Arizona, has apparently offered 20% to 30% discounts off its regular rates for contracted parties. These agreements create a long-term contractual relationship between the reporting agency and party or counsel. Both WCRA and the National Court Reporters Association (NCRA) strongly oppose the practice, but it continues to grow.

When reporting agencies, subject to these contracts, are asked to report a Washington deposition, they hire a Washington certified court reporter as an independent contractor to report the deposition. However, the reporter is often required to relinquish control of the original final deposition to the “contracted” reporting firm, which then formats and/or edits the transcript and delivers the final product. This common scenario allows the advocatory court reporting agency to take control of the billing, distribution, and archiving of the official record. It also shifts control of the record from licensed and regulated officers of the court to partial interests, leaving the public vulnerable to what are now becoming, unfortunately, common abuses within the court reporting industry. An entity whose interests are so closely tied to and interdependent with one party to the litigation should not be in control of the official record.

WCRA believes this very common scenario effectively eviscerates the Court’s mandates for fair dealing and equitable treatment, reduces and/or restricts the court reporter’s accountability to the public and the courts, jeopardizes the security and confidentiality of the official record, and removes any meaningful avenue of redress, undermining the purpose of CR 28 in two critical ways.

A court reporting agency that has a long-term contract with one of the parties is not a disinterested person under CR 28(c). Second, there is no mechanism for ensuring that all parties are actually receiving the deposition transcript on equal terms as the current CR 28(d) envisions. Instead, whether parties are treated equally is left to the discretion of the court reporting agency that invoices each party. As a practical matter, lawyers rarely inquire whether the reporting firm they used for a deposition is actually offering the transcript to the other side on equal terms. Even more troubling, the court reporting agency may not be regulated by the Department of Licensing and may or may not be aware of Rule 28(c) and (d). But it has a significant financial interest in not offering the same discounted terms to all parties.