E-Depositions Challenged...Again. We Won...Again.

Recently our firm had a motion filed against our recording a deposition in Carson City District Court. The motion was to limit the use of a deposition we recorded. The motion was denied by the judge and the deposition can be used at trial. More on that below, but first a little backstory on our fight to help attorneys and their clients.

Being one of the first companies to compete directly with the court reporting industry has its disadvantages. Like the fact that the industry has had no outside competition since its inception and whenever you challenge an industry that is that entrenched with something new it will always bring pushback.

Six years ago E-Depositions was challenged in a trial motion to exclude depositions that we recorded as well as exclude a member of E-Depositions from providing trial tech services. The basis of the motion surrounded the fact that a licensed court reporter, or stenographer, was not present at the time of the depositions and that was a requirement under NRCP. NRCP 28 covers who can record a deposition in the State of Nevada:

"Rule 28. Persons Before Whom Depositions May Be Taken (a) Within the United States. (1) In General. Within the United States or a territory or insular possession subject to United States jurisdiction, a deposition must be taken before: (A) an officer authorized to administer oaths either by federal law or by the law in the place of examination; or (B) a person appointed by the court where the action is pending to administer oaths and take testimony."

As you can see there is no mention of a "court reporter" or a "stenographer" in that rule. Matter of fact there is zero mention of a "court reporter" anywhere in NRCP 28-32. ZERO.

Honorable Judge Freeman, from the Second Judicial District Court in the State of Nevada, denied the motion and said "After hearing Mr. Ivey's testimony it is clear to me that the official record is the audio/video recording and the transcript is just an aide to that record" This ruling was clear and concise and we figured would be the end of the fight. Not so.

In 2017 The Nevada Court Reporting Board tried to pass legislation that would make it so only a licensed court reporter could take testimony in the State of Nevada. The legislative body denied this language and made it clear that they were not behind this tactic. Maybe because the legislature moved away from court reporters years and years ago to record everything via audio/video technology.

Along with this, the tactic used by the NCRB was illegal. It was in clear violation of the Sherman Act which prohibits a state board comprised of active market participants from restricting trade. Something the United States Supreme Court has ruled on twice. That didn't stop the court reporting board from trying to go to the Supreme Court Rules Committee to shut us down. They also attempted in 2019 legislative bill to make it so anyone who records testimony would have to be licensed under their board. This action brought strong resistance from county courts that do not use court reporters and use the JAVS system, claiming this bill would create hundreds of thousands of dollars in costs that were not in a budget. The bill was never heard and died without a hearing. This hasn't stopped the NRCRB from now trying to make any videographer be licensed under them. They are currently attempting again to get a bill to limit their competition for the 2023 session. Peggy Elias, chair of the board, in an open meeting said that videographers would not be allowed to record depositions without the presence of a licensed court reporter. This is on public record. Again violating the Sherman Act.

The reason I write the above, is Court Reporters and Court Reporting firms in Nevada are part of the problem with the baseless motions we faced 6 years ago and the one we just faced in the last month. The most recent motion was in front of the Carson City District Court. It was brought to exclude a deposition that we recorded in a medical malpractice case. The Dr. that was deposed provided an errata sheet that contained 78 transcription errors. The review (received by E-Depositions over 60 days after the 30 day review period) was startling and concerning. However, in the review the attorney states the deponent never reviewed the video of the deposition. What we did find in our review is the deponent wanted all his "uhs" and "ums" taken out of the transcript. Bottom line he did not like the way he sounded on paper. The motion also went after the officers ability to record a deposition as they are not a licensed court reporter. Which as we mentioned above is a baseless argument as NRCP covers that specifically.

In this case the Judge denied the motion and our client is free to use the video deposition at the time of trial. Unfortunately this type of baseless motion creates work and anxiety for our clients and us. What all attorneys need to come to grips with is that in the near future there will be such a low supply of court reporters that the recording of depositions will be predominantly done non-stenographically. Following in the footsteps of the courts moving away from court reporters, implementing video recording of all proceedings using the JAVS systems. Or systems like the Nevada Legislature uses. It's also time for the legal industry to wake up and realize a stenographic deposition is very limited today and not very useful at trial. Even the courts want the use of non-stenographic depositions (Video) in trial.

"Rule 32. Using Depositions in Court Proceedings: (c) Form of Presentation. Unless the court orders otherwise, a party must provide a transcript of any deposition testimony the party offers, but may provide the court with the testimony in nontranscript form as well. On any party’s request, deposition testimony offered in a jury trial for any purpose other than impeachment must be presented in nontranscript form, if available, unless the court for good cause orders otherwise."

A transcript is just words on a piece of paper. When a deponent is yelling you don't see the court reporter TYPING IN ALL CAPS to show that. Non-verbal communication is non existent on a court reporters transcript. Along with pauses, tone, emotion...none of that is available to a jury or judge. E-Depositions has been recording depositions non-stenographically for 9 years now. We capture all of those things court reporters can not. In those 9 years we have certainly had our challenges but have prevailed on all of them. The reason is we have the law on our side and we follow NRCP to the letter in how we record. Judges have ruled in our favor, the Supreme Court of the State of Nevada backs what we do through their approval of the language in NRCP, and the Nevada Legislature has backed our efforts to bring this industry into the 20th century.

While the challenge we just faced shows that the courts are behind how we record depositions it is time for the legal industry to look at progression and how that will help their practice. E-Depositions is here to provide that progression through 9 years of practice and expertise in non-stenographic depositions.