WSR 15-01-030

RULES OF COURT

[December 3, 2014]

The Washington Court Reporters Association, having recommended the suggested amendments to CR 28—Persons before whom Depositions may be taken, CR 80—Court Reporters, and RAP 9.2—Verbatim Report of Proceedings, and the Court having considered the amendments and comments submitted thereto;

Now, therefore, it is hereby

(a) That pursuant to the provisions GR 9(g), the proposed amendments as shown below are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites expeditiously.

(b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties.

(c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than April 30, 2015. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or supreme@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 3rd day of December, 2014.

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.

The purpose of adding a new paragraph to Rule 80 is to allow a party to choose a court reporter at its expense in the event the superior court elects to use only an electronic recording device.

WCRA recommends that Civil Rule 80 be changed to allow parties to engage certified court reporters where a superior court has elected to use only an electronic recording. WCRA appreciates that electronic recordings can be a less expensive method of recording oral proceedings in the first instance. However, electronic recordings have several significant drawbacks. First, the recording system can fail, which in the worst case may require a new trial, a hugely expensive risk for litigants. Second, even if the system functions properly, an appellant will often have to pay more for a verbatim report of proceedings based on an electronic recording than one derived from stenographic notes. The reason is that a court reporter (or transcriptionist) must spend significantly more time transcribing recorded testimony than live testimony. Third, in multiday trials, litigants often want same day transcripts in order to prepare for subsequent days. If a proceeding is only recorded electronically, that recording must be obtained and then transcribed by the court reporter after the trial day has ended, doubling the time required for a party to receive a transcript. Thus, while electronic recordings may reduce court costs they can significantly increase costs for litigants.

Therefore, if a party is willing to bear the cost of engaging a court reporter, Rule 80 should not prevent that party from doing so.

This proposed addition is needed because some courts may interpret the addition of transcriptionists in RAP 9.2 as giving them discretion to prevent certified court reporters from preparing verbatim reports of proceedings. That would be a mistake and fundamentally inconsistent with the Court Reporting Practice Act (CRPA). However, at least one superior court—Clark County—is already preventing certified court reporters from preparing verbatim reports of proceedings from electronically recorded trials. If the practice in Clark County is allowed to spread, it will turn the CRPA on its head by preventing the individuals specifically licensed by the State to create verbatim records from actually doing so.

(c) 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. with an interest in the action in which the deposition is being taken. For purposes of this rule, interested persons include:

(d) Equal Terms Required. 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. At the discretion of the judicial officer before whom the deposition is taken, counsel for all parties and the court reporter who reported the deposition may be required to sign an affidavit that all court reporting services in the case have been offered to all parties on Equal Terms.