WSR 16-13-024

RULES OF COURT

[June 2, 2016]

The Washington Court Reporters Association, having recommended the suggested amendments to CR 28(d), and new subsection (e)—Persons Before Whom Depositions May Be Taken, CR 30 (b)(1)—Depositions Upon Oral Examination, and CR 80(d)—Court Reporters, and the Court having approved the proposed amendments for publication;

Now, therefore, it is hereby

(a) That pursuant to the provisions of 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.

(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 August 20, 2016. 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 2nd day of June, 2016.

A. Name of Proponent: Washington Court Reporters Association

B. Spokespersons:

C. Purpose:

The purpose of amending CR 28(d) is to ensure that deposition transcripts are offered to all parties on equal terms and to maintain the impartiality and neutrality of court reporters.

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.

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. 

D. Hearing: WCRA requests a hearing.

E. Expedited Consideration: WCRA requests expedited consideration.

(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. Any party or counsel of record for a party may request that the court reporter or court reporting firm providing or arranging for the court reporting services file an affidavit with the Court affirming that all such services have been provided to all parties on equal terms. The affidavit shall be filed within 10 days of any request. If the affidavit is not timely filed, the Court may sanction the court reporter and court reporting firm of whom the request was made. If court reporting services have not been provided on equal terms, the Court may sanction the court reporter, the court reporting firm, as well as the counsel or party who hired the reporter or firm to provide the court reporting services.

A. Name of Proponent: Washington Court Reporters Association

B. Spokespersons:

C. Purpose:

The purpose of amending CR 28 to add a new subsection, (e), as proposed, is to prevent a court reporting firm, consortium, or other organization transmitting a court reporter's certified transcript from altering the format, layout, or content of the transcript after it has been certified.

In recent years some reporting agencies — particularly national firms — have altered the format, layout, and/or content of certified deposition transcripts in order to increase the total number of pages. The reason for this is that parties ordering deposition transcripts are typically charged a per-page fee for transcription services. Thus, a court reporting agency that alters the format of a deposition transcript to increase the number of pages generates a higher fee from the ordering party. To facilitate this practice, court reporting agencies frequently request signed certification pages from local court reporters without first allowing the reporters to review and to approve the final formatted transcript.

This abusive practice has prompted the Washington State Department of Licensing to issue "standards of practice guidelines" for court reporters, which expressly advise court reporters to review the final version of a formatted transcript before signing the certification sheet and to avoid signing blank certification sheets. See Exhibit A. To add "teeth" to the State Department of Licensing's guidelines, WCRA proposes adding a new subsection to CR 28 that would clarify the local court reporter's duties in certifying a deposition transcript and prevent any court reporting firm, consortium, or other organization transmitting a court reporter's certified transcript from altering a deposition transcript in any way after it has been certified.

D. Hearing: WCRA requests a hearing.

E. Expedited Consideration: WCRA requests expedited consideration.

F. Supporting Materials:

A. Name of Proponent: Washington Court Reporters Association

The practice of cost shifting has become widespread in the court reporting industry, with court reporting companies increasingly entering into contractual relationships with parties, insurance companies, and law firms to provide court reporting services at a "volume discount." To offset the revenue lost from these discounts, the court reporting firms routinely charge non-contract parties higher than average rates for transcription services. For instance, a party that has contracted with the court reporting company for a volume discount receives the original transcript and one copy of the same at the agreed upon discounted price. The other party or parties, who do not have contractual relationships with the court reporting company, are then charged higher rates for the second or third copies of the transcript. Thus, court reporting firms are providing transcription services to parties involved in the same lawsuit on unequal terms, As a result, the contracting party receives more favorable treatment by the court reporting company. The party that has not noticed the deposition is usually unaware of the contract's existence, the terms involved, or the benefits that the party may be receiving at its expense.

The proposed amendment to CR 30(b)(1) would require the deposition notice to disclose the existence of any known contractual relationships between, on the one hand, the noticing party, its counsel, and any person paying for the court reporting services at issue and, on the other hand, the court reporter or court reporting firm providing the reporting services.

D. Hearing: WCRA requests a hearing.

E. Expedited Consideration: WCRA requests expedited consideration.

(1) A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing of not less than 5 days (exclusive of the day of service, Saturdays, Sundays and court holidays) to every other party to the action and to the deponent, if not a party or a managing agent of a party. Notice to a deponent who is not a party or a managing agent of a party may be given by mail or by any means reasonably likely to provide actual notice. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify the deponent or the particular class or group to which the deponent belongs. The notice also shall state the existence of any contract between the noticing party, its counsel, or a third party paying to record the noticed deposition and the person, court reporting firm, consortium, or other organization providing a court reporter for the noticed deposition, and the notice will state whether the noticing party or a third party directed his or her attorney to use a particular court reporting firm, consortium, or other organization to provide deposition services. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice. A party seeking to compel the attendance of a deponent who is not a party or a managing agent of a party must serve a subpoena on that deponent in accordance with rule 45. Failure to give 5 days' notice to a deponent who is not a party or a managing agent of a party may be grounds for the imposition of sanctions in favor of the deponent, but shall not constitute grounds for quashing the subpoena.

A. Name of Proponent: Washington Court Reporters Association

The purpose of adding a new subsection, (d), 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 be 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.

D. Hearing: WCRA does not request a hearing.

E. Expedited Consideration: WCRA does not request expedited consideration.