GR 9 COVER SHEET

Suggested Changes to

CIVIL RULE 28

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 28(a), (c), (d), and (e) is necessary to preserve the integrity of

the record and make it clear that any persons recording depositions would be considered “officers” under the rules and are subject to rule 28(c) Disqualification for Interest, rule 28(d) Equal Terms Required, and rule 28(e) Final Certification of the Transcript.

On October 27, 2022, the Supreme Court of Washington issued an Order Regarding Court Operations After October 31, 2022. Washington courts had been operating under a series of orders issued by the Court following Governor Inslee’s proclamation of a state of emergency on February 29, 2020, due to the novel coronavirus disease (COVID-19) pandemic.

The Court ordered that the following provisions of the Court’s current emergency orders remain in effect until further order of the court: With Respect to Civil Matters:

3.   With respect to all civil matters, courts should encourage parties to stipulate in writing to reasonable modifications of existing case schedules and remote methods of service and to conduct discovery, pretrial hearings, and alternative dispute resolution by remote means whenever possible.

Presumption of Remote Depositions: With respect to discovery, depositions shall be performed remotely absent agreement of the parties or a finding of good cause by the Court to require the depositions be performed in person. Absent agreement of the parties, with respect to remote depositions where only the deponent and their counsel are in the same room, the technology used must include video/audio for both the deponent and their counsel. If the deposition is being recorded (see CR 30(b)(8)), the recording need only be of the deponent witness and not of other participants to the deposition proceeding.

The routine use of remote depositions has created an opportunity for counsel to exploit ambiguities in the rules to argue that CR 30(b)(8)(H) permits counsel, counsel’s employees, or anyone to video record a deposition thereby avoiding the safeguards of CR 28 and jeopardizing the integrity of the record and confidence in the system.

The rules give the parties great latitude in selecting the person before whom a deposition may be taken.

CR 29 Stipulation Regarding Discovery Procedure, states:

Unless the court orders otherwise, the parties may by written stipulation (1) provide that depositions may be taken before any person, at any time or place, upon any notice and in any manner and when so taken may be used like other depositions, and (2) modify the procedures provided by these rules for other methods of discovery.

The rules provide additional latitude in selecting the method used to record deposition testimony.

CR 30(b)(4) Nonstenographic Recording, 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. The stipulation or the order shall designate the person before whom the deposition shall be taken, the manner of recording, preserving, and filing the deposition, and may include other provisions to assure that the recorded testimony will be accurate and trustworthy.

It has become standard practice in Washington Courts to employ audio/video recording systems in place of stenographic court reporters. In addition, the Department of Licensing has recognized that Voice Writers, who use specialized software and skills to make the record, may be certified as court reporters in the State of Washington. The methods and persons before whom a deposition may be taken have evolved as technology has changed. The rules have not kept up.

With respect to depositions the rules provide a special exception for recording of deposition testimony by video without court order or the need for stipulation by counsel.

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

(A) 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.

In Perales v Town of Cicero, et al., US District Court, Norther District of Illinois, Case Number 11 C 2056, March 6, 2012 the Court held that:

…unless stipulated otherwise, each method of deposition recording must be accompanied by its own separate Rule 28(a) officer who can perform the duties laid out in Rule 30.”

In Alcorn v City of Chicago, Case Number 17 C 5859 the Court addressed Plaintiff’s proposal to use a Zoom recording:

The issue presented is one that is novel and a product of the national health crisis that we are currently facing. Since April 2020, attorneys have been conducting an extraordinary number of depositions remotely using videoconferencing technology. While technology has changed the dynamics of the practice of law, some things have remained the same. A court reporter is still a fixed and necessary presence at a deposition, and is charged under the Federal Rules of Civil Procedure with ensuring the integrity of the deposition. The question presented in this matter is whether a party can record a deposition, using the "Zoom" record function, where the court reporter has been retained only to stenographically record the deposition, and has declined to certify the video recording as an accurate record of the witness's testimony.

The Court went on to note that:

Rather, it is a certified videographer who has the appropriate training to serve as the Rule 28 officer, and ensure that a video deposition is properly recorded with established procedures to go on or off the record, limit noise and interruptions, address technical glitches, and frame the camera view on the witness. And it is the videographer who will complete the necessary certification under the Federal Rules to affirm the accuracy of the video recording of the deposition, not the stenographic reporter.

By modifying CR 28(a) to include a person recording a deposition under CR 30 in the definition of officer, the Court would remove an ambiguity in the rules which counsel are exploiting to avoid the application of CR 28 safeguards thereby ensuring the integrity of the process.

These CR 28 safeguards include:

CR 28(c) Disqualification for Interest, states:

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.

and

CR 28(d) Equal Terms Required, states:

Any arrangement concerning court reporting services or fees in a case shall be offered to all parties on equal terms. This rule applies to any arrangement or agreement between the person

before whom a deposition is taken or a court reporting firm, consortium or other organization

providing a court reporter, and any party or any person arranging or paying for court

reporting services in the case, including any attorney, law firm, person or entity with a

financial interest in the outcome of the litigation, or person or entity paying for court reporting services in the case.

By replacing the word “person” with “officer” the court eliminates the ambiguity that allows counsel to misinterpret the rules and makes it clear that the duties of an officer apply.

CR 28(e) provides an additional safeguard by requiring that the transcript produced shall not be certified until after the final version has been reviewed and that the transcript should not be modified after the certification.  I submitted this rule change request adding section (e) back in June of 2016. At that time alternative methods and stipulated persons before whom depositions were taken was a rare occurrence. That is no longer the case.

CR 28(e) Final Certification of the Transcript, states:

The court reporter reporting a deposition shall not certify the deposition transcript until after he or she has reviewed the final version of the formatted transcript. A court reporting firm, consortium, or other organization transmitting a court reporter's certified transcript shall not alter the format, layout, or content of the transcript after it has been certified.

As currently written this safeguard applies only to transcripts produced by court reporters who are certified pursuant to RCW 18.145.010.

CR 29 allows stipulation by counsel as to other persons before whom a deposition may be taken. When such a person is not a certified court reporter pursuant to RCW 18.145.010, the court’s interest in the accuracy of the transcript makes certification of the transcript more essential not less.

No matter who produces a transcript or what method is used to record the testimony of a witness, whether it be a stenographic reporter, a voice writer, a court installed system, audio or video recording, or some other method stipulated to by the parties, the court retains an interest in maintaining the integrity of the record, disqualifying persons with an interest in the outcome, providing equal terms to all parties, and certifying the accuracy of the transcript.

Such a change is also consistent with the use of the term “officer” in rules 30, 31, and 32.

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).

Alcorn v. City of Chicago, Case No. 17 C 5859

Perales v Town of Cicero, Case No. 11 C 2056 23