Amendments to the Federal rules of civil procedure : hearing before the Subcommittee on Intellectual Property and Judicial Administration of the Committee on the Judiciary, House of Representatives, One Hundred Third Congress, first session, June 16, 1993 online

evasive answers to interrogatory questions. It is to be commended.

C. Rule 30

The rule permits the taking of depositions by non-stenographic means, as by vid-
eotape. It also provides that if the deposition is to be used to that extent, it elimi-
nates the court reporting or stenograpnic function at the deposition. However, if the
deposition is going to be used in court, other rules require that it be transcribed
and then a copy be furnished to the court.

The benefits to the rule are that, by making maximum use of modem technology,
the procedure makes deposition much more vivid and far less expensive. In jury
cases, the videos may be used to present the deposition testimony to the jury even
though a transcript must be lodged with the court to perfect the record and for the
convenience of a reviewing court. The incidental cost savings are also considerable;
the doctor, for example, can be videotaped, charts and all, in his ofiice.

In short, the rule permits the benefits of the electronic age to enter the court-
house; but there is a clear downside. As with the development of all machines to
replace other labor forces over the centuries, there is whatever gain the machine
gives but there is the loss of jobs to the labor force. Court reporters have done this
work for a long time. Now on depositions which will not be used in court, they wiU
never be involved and, even where the deposition is to be used in the court, the
stenographic transcript can be made at lower pace by office staff. A whole industry
may be badly damaged or rendered obsolete.

Frequently the obsolescence of the labor force by the progress of the machine or
by new methodologies can be softened by job preservation techniques. For illustra-
tion, when the shipping industry thirty years ago moved to containers, it rendered
the longshoremen largely obsolete but the industry provided that the existing long-
shoremen should be kept on the job until they reacned retirement age so that the
phase-out would be gradual. The problem with any phase-out here is that it puts
a great cost on litigants for absolutely superfluous services.

If the Rules Committees have given any thought to the phase-out problem, I am
unaware of it. The court reporters of the nation commonly are skilled people,
trained in their work, and, within my experience at least, overwhelmingly capable
and faithful to the tasks they have undertaken. Yet come December 1, for the large
discovery phase of their work, it is bye-bye court reporters.

The court reporters themselves may nave some proposal to make the transition
less painful and if 90, it deserves careful consideration. My own suggestion is a
timid one and 1 would withdraw it if the court reporters, to whom I have not spo-
ken, reject it. But the fact is that the same obsolescence which hits the court report-
ers in discovery will do the same for trial. Trials, too, can be, and on occasion are,
videotaped, and there is no need for a transcript except in that relatively small
number of cases which are appealed. Moreover, the new machines permit electronic
re-creation of the testimony simultaneously with its utterance; a Phoenix federal
judge has a video system in his courtroom in which the court reporter records to
a computer and the testimony is on a screen within seconds of its utterance. The
computer record can be searched to find the relevant objection or instruction, and
the rest will never even need to be printed. Moreover, there is today advanced work
on straight voice to computer.

I diffidently suggest to the Committee that it include in any report on these rules
a recommendation to the rule-making authorities that no rule eliminating trial tran-
scripts for at least a ten-year period will be welcome here. This would permit a rea-
sonable transition. Newcomers to the profession can stop learning it if they feel it



61

has no economic future. The present work force will have reasonable opportunity to
plan retirement or to transfer to other work; I believe there are schools now for
court reporter transition. I repeat, I take no pride in my particular suggestion; I pro-
pose it only to create a mood. It is always cruel when a new machine throws em-
ployees out of the work force, and if ingenuity can make that eviction less painful,
it snould be welcomed.

I thank you for the opportunity to appear before you. I summarize again by saying
that while many of these rules are sufficiently minor or accommodating to other
changes so that they are merely useful, a number of them are of truly high value
and are either not controversial at all or not seriously so. Rules 11, 33, 54 and 58
are seriously needed now. While Rule 11 drew the dissent of two Justices, I hope
that the anxiety of the bar for this change, coupled with the total absence of any
resistance here, will permit you to accept this rule comfortably. I commend Rules
26 and 30 to you, with the hope that perhaps you can make some softening legisla-
tive history to ameliorate the personal losses under Rule 30. Because so much of
this package is truly necessary and needed now, I repeat my initial admiration for
the promptness with which you are taking hold of this problem.

One last phase I have not discussed and that is the opinion of Justice White sug-
gesting that the Supreme Court be dropped out of the rules-making procedure alto-
gether. This, were it to be done, would take an independent statute. I believe that
a bill to this effect should be introduced and should oe the subject of separate and
independent hearings since there is nothing you can do on the topic in connection
with the matter immediately before you. There are other changes which should be
made in the Rules Enabling Act which ought to be considered at the same time.
It would be a privilege to be allowed to make suggestions to you on that score if
you are giving thought to a revisory bill. But that is a topic for another day.

Meanwhile, thank you very much.



62



BENCH-BAR COMMITTEE TO REVISE
CIVIL PROCEDURE RULE 11



Robert G. Begam, Esq., President, ATLA, 1976-77

James E. Carbine, Esq., Baltimore, Maryland

Edmund L. Carey, Jr., Esq., Nashville, Tennessee

Professor Erwin Chemerinsky, University of Southern California Law Center

Professor George C. Cochran, University, Mississippi

Judge Avern Cohn, U.S. District Court, Eastern District of Michigan

Philip H. Corboy, Sr., Esq., Chicago, Illinois

Professor Dennis E. Curtis, University of Southern California Law Center

Delaware State Bar Association

Francis Fox, Esq., Boston, Massachusetts

John P. Frank, Esq., Phoenix, Arizona

Judge A. Leon Higginbotham, Jr., Third Circuit Court of Appeals

Judge Patrick Higginbotham, Fifth Circuit Court of Appeals

Hugh Jones, Esq., S5Tacuse, New York

Laura Raster, Esq., Chicago, Illinois

Michael A. Maness, Esq., Houston, Texas

Judge Monroe G. McKay, Tenth Circuit Court of Appeals

NAACP Legal Defense and Educational Fund, Inc.

David Nachman, Esq., New York, New York

Professor Judith Resnik, University of Southern California Law Center

Judge Stephen Reinhardt, Ninth Circuit Court of Appeals

Judge Mary M. Schroeder, Ninth Circuit Court of Appeals

Leonard W. Schroeter, Esq., Chair & Co-Chair Three Major ATLA Committees

Professor Aviam Soifer, Boston University School of Law

Jerold S. Solovy, Esq., Chicago, Illinois

Mark Stein, Esq., Chicago, Illinois

Professor Michael E. Tigar, Chairman, ABA Litigation Section, 1989-90

Professor Georgene Vairo, Fordham University School of Law

Bill Wagner, Esq., Tampa, Florida



63

Mr. Hughes. Mr. Slate, welcome.

STATEMENT OF WILLIAM K. SLATE H, PRESIDENT, JUSTICE
RESEARCH INSTITUTE, ON BEHALF OF THE NATIONAL
COURT REPORTERS ASSOCIATION

Mr. Slate. Thank you.

Mr. Chairman and members of the subcommittee, I address you
today on why proposed rule 30(b)(4) of the Federal Rules of Civil
Procedure governing depositions should not be changed as proposed
in the amendments now before you.

The chairman alluded to this, but I come to these issues from the
perspective of an executive in State and Federal courts, and as the
head of an institute which does research and provides management
advice almost exclusively to State and Federal courts.

Virtually the sole exception to the work for court systems by the
institute has been several studies of the methods of making a trial
court record and taking depositions, which were performed on be-
half of the National Court Reporters Association. It is specifically
with respect to two of those studies conducted within the past year
regarding the cost of depositions and depositions and accuracy that
form the basis of my remarks here today, and with the consent of
the committee, Mr. Chairman, I would hope that these studies may
be made a part of the record.

Mr. Hughes. Without objection.

[The studies appear in appendix 1.]

Mr. Slate. Thank you.

We have concluded the case is overwhelming for the maintenance
of the Federal rule in its present format, for neither the enhance-
ment of accuracy nor a reduction in civil litigation costs will be
achieved by a rule which encourages nonstenographic methods
such as audio or video to be a substitute for taking a deposition
without a court order or by stipulation of the parties.

First of all, with respect to accuracy, we have concluded in our
studies that both historically and at the present a court reporter
deposition is the qualitative standard for accuracy and claritv. A
court reporter's goal is verbatim transcription. That is the Federal
standard.

Videotaped transcription, by contrast, has sought and been con-
tent with a standard based on the concept of faithfulness or a faith-
ful representation of what was said at a legal event.

I submit to you, gentlemen, that accuracy and faithfulness on
their face are not synonyms.

Further, the deposition process, we maintain, should not be rel-
egated to a lesser standard than other aspects of court proceedings.
It shouldn't be lost on any of those considering rules-related
changes to depositions that depositions admitted at court must in-
variably be in transcript format. Trial courts require court report-
ers for important cases; and appellate courts in the Federal court
system and, almost without exception the State courts will not per-
mit videotapes only, but require hard-copy transcription.

Also, I think it is important for the committee to think about the
fact that in the course of our research into notions of accuracy, it
became clear that the literature, when addressing problems and is-
sues associated with the various taping methodologies, including



64

inaudibles, indiscemables, and equipment failures, all occurred in
courtroom settings under the most controlled conditions presided
over by a judge.

Similar problems occurring in the deposition process outside of a
structured courtroom setting will substantially exacerbate the neg-
ative results. A key witness or expert testimony cannot be tran-
scribed weeks or months after it was taken.

Finally, in respect to accuracy, attorneys in our study expressed
the view that the most serious potential miscarriage of the use of
videotaped depositions is the absence of any standards or rules for
taking depositions or for using them in court. Neither do standards
exist for taped transcribers. Indeed, attorneys in all the jurisdic-
tions that we studied advised that video was a valuable strategic
tool which could be manipulated to make a certain impact on a
jury.

Additionally, the future accuracy, if you will, as related to the
long-term life and dependability of tapes, is literally unknown. The
National Archives and the Library of Congress are studying the
issue, but no credible source — the only exception is vendors — is
willing to even venture a qualifying estimate of the life of a tape.

And what about the second compelling issue of cost to litigants
and to the courts themselves? This past year, the Justice Research
Institute conducted a cost-benefit analysis of all relevant costs in
the deposition process, utilizing audio recording, court reporters
using computer-aided transcription equipment, and video record-
ing. Because there is rightly a desire today to bring the cost of liti-
gation under closer scrutiny, we employed a standard cost-benefit
analysis approach, because it concentrates attention on basic
issues.

After an exhaustive literature review, we conducted onsite analy-
sis and data checks in three geographically diverse areas, Alabama,
California, and New Jersey, and conducted in-person interviews
with attorneys in government and in private practice representing
both plaintiffs and defendants, as well as with freelance court re-
porters, audiotape and videotape transcribers.

In addition to a number of accepted direct cost centers associ-
ated, such as the cost of taking and transcribing a deposition, we
found" a number of hidden costs. A hidden cost is defined as a cost
associated with producing or utilizing the deposition which is not
patently visible, is less obvious than a direct cost, and is a cost
which may be shifted to government at large, taxpayers, attorneys,
or litigants themselves.

Hidden costs associated with audio and video included the time
consumed by trial and appellate judges in reviewing the tape; and
the cost to the litigants of additional time to review tapes by trial
counsel, which attorneys have estimated increased by a factor of
three to four times in order to review and study a tape in prepara-
tion for a trial, in contrast to hard copy.

The FBI was recently quoted in an article as indicating their
view that the time increase to review tapes, as opposed to real
time, is an increased factor of 8 to 10. Somebody is paying for those
costs, gentlemen.

Other hidden cost factors include the cost of rental or purchase
of playback equipment by witnesses, the cost of playback equip-



65

ment in judges' chambers, and the cost of playback equipment in
attorneys' offices, government attorneys and private counsel.

After inputting all the data collected, the cost-benefit analysis
model revealed that the cost of recording a deposition by a court
reporter using computer-aided transcription equipment is the least
costly method across the board. This is true whether the deposition
is taken and the case settles or whether a transcript is subse-
quently made of an audiotape or videotape, or even in the rare in-
stance where an audiotape or videotape is utilized without a tran-
script in court.

As has been alluded to a number of times today, the Civil Justice
Reform Act of 1990 admonishes the courts to fashion ways to re-
duce the cost of civil litigation. Thus, it would be contrary to other
cost reduction movements within the third branch to undertake an
initiative inherent in the proposed changes to 30(b)(4) that would
in fact increase the cost of civil litigation.

Quickly, the third and final set of facts that I will reference
today in support of the soundness of the existing rule concerns
depositions and computer technology. A paramount issue to be ad-
dressed in the strategic and long-range planning for the Federal
courts is consideration of not only the technology presently avail-
able, but all foreseeable future technologies.

In one respect the future is known. The microcomputer is in the
forefront and has invaded virtually every aspect of business and so-
ciety. It will be the cornerstone of future technologies.

With this in mind, it is difficult to imagine that a court system,
through its procedural rule apparatus, would encourage stand-
alone audio or video technology, the kind of single-purpose tech-
nology that will very soon be obsolete when compared to computer-
based operations.

Now, Mr. Frank referred earlier to the system that is going on
right now in Judge Roger Strand's courtroom in California. It is a
computer-integrated courtroom utilizing a court reporter; it is not
video technology. It is a television monitor that displays the writ-
ten word on the TV monitor for all the party participants to see
in "real time;" as the stenographer types into the stenograph ma-
chine, the actual words in the English language appear on the TV
screen. This is a computer-based court reporter system.

And, gentlemen, I say to you in all due respect, in many ways
the debate has already moved beyond the discussion here today
about audio and video, because the future is about a computer-driv-
en system, and that involves a stenographer and computer-aided
transcription, and indeed, again, as Mr. Frank referred to, a com-
puter-integrated courtroom.

So I say to Congressman Coble, sir, you may be a 19th century
gentleman, but you are also a 21st century one, in that audio and
video standing alone is a present-day technology that court report-
ers have moved beyond through the development of computer-inte-
grated courtrooms.

I would say also with regard to this computer-centered court re-
porter technology, that it has braille capability, and it is in fact the
same software that Donnald Anderson, the Clerk of the House, is
employing in the new braille letter-writing services that have been
available to the Members of the House since January.



66

So I would reiterate in summary, that in addition to thinking
about the importance of a computer-enhanced system that opens up
court proceedings and complies with the Americans with Disabil-
ities Act, that it also clearly, from our research, is a less costly sys-
tem and a more accurate system.

So for the foregoing reasons, we conclude the case is overwhelm-
ing, gentlemen, for the maintenance of the Federal rule in its
present format. Again, neither the enhancement of accuracy nor re-
duction in civil litigation costs will be achieved by a rule permitting
a nonstenographic method such as audio or video to be used as a
substitute for taking a deposition without a court reporter, or, by
stipulation of the parties as is available in the existing rule.

Thank you very much.

Mr. Hughes. Thank you very much, Mr. Slate.

[The prepared statement of Mr. Slate follows:]

Prepared Statement of William K. Slate II, President, Justice Research
Institute, on Behalf of the National Court Reporters Association

I appear here today to discuss why proposed Rule 30(b)(4) of the Federal Rules
of Civil Procedure governing depositions should not be changed as proposed in the
amendments to the federal rules now before you.

I address these issues from the perspective of my experience as an executive in
state and federal courts and as the head of an institute which does research and
provides management advice almost exclusively to state and federal courts. Vir-
tually, the sole exception to work for court systems proper by the Institute has been
several studies of the methods of making a trial court record and of taking deposi-
tions, which were performed on behalf of the National Court Reporters Association.
It is specifically with respect to two studies conducted within the past year regard-
ing depositions and accuracy and a cost-benefit analysis of the several methods of
taking a deposition which are the basis for my remarks before you today as related
to Rule 30(b)(4). We conclude that the case is overwhelming for the maintenance
of the federal rule regarding depositions in its present format and for not enacting
proposed Rule 30(b)(4). Neither the enhancement of accuracy nor a reduction in civil
litigation costs will be achieved by a rule permitting a non-stenographic method,
such as audio or video, to be used as a substitute for taking a deposition without
a court order or stipulation by the parties.

ACCURACY SHOULD BE THE STANDARD FOR SELECTING A DEPOSITION METHODOLOGY

In our study of all extant sources on the subject of accuracy, we concluded that
both historically and at the present a court reporter deposition is the qualitative
standard for accuracy and clarity. A court reporter's goal is verbatim transcription —
that is the federal standard. Videotaping transcription, by contrast, has sought and
been content with a standard based on the concept of "faithfulness," or a faithful
representation of what was said at a legal event. "Accuracy" and "faithfulness" on
their face are not synonyms.

Further, the deposition process should not be relegated to a lesser standard than
other aspects of court proceedings. It should not be lost on policy makers considering
rules related to depositions that depositions admitted at court must invariably be
in transcript format; trial courts require court reporters for "important" cases; and
appellate courts, in the federal court system, and almost without exception in state
court systems, will not permit videotapes only, but require hard-copy transcription.^

Also, in the course of our research into notions of accuracy, it became clear that
the literature, when addressing problems and issues associated with taping meth-
odologies, including "inaudibles," "indiscemibles" and equipment failures, all oc-
curred in courtroom settings under the most controlled conditions presided over by
a judge. Similar problems occurring in the deposition process, outside of a struc-
tured courtroom setting, will substantially exacerbate the negative results when a
key witness or expert testimony cannot be transcribed weeks or months later.



1 While audio depositions are possible, we have found only one instance of their use in all of
our empirical research and interviews with judges, attorneys, court reporters and transcribers.



67

It is intuitive that multiple players in the deposition process, i.e., a videotape op-
erator and a transcriber, enhance the likelihood of errors, "unintellieibles and
"inaudibles."

Finally, in respect to "accuracy," attorneys in our study expressed the view that
the most serious potential miscarriage of the use of videotape depositions is the ab-
sence of any standards or rules for taking depositions or lor using them in court.
Neither do standards exist for tape transcribers. Indeed, attorneys in all jurisdic-
tions studied advised that video was a "valuable strategic tool which could be ma-
nipulated to make a certain impact on a jury."

Additionally, the "future" accuracy as related to the long-term life and dependabil-
ity of tapes is literally unknown. The National Archives and the Library of Congress
are stuaying the issue, but no credible source (the only exception is vendors) is will-
ing to even venture a qualifying estimate of the life of a tape. It is known and docu-
mented that tapes become brittle and "bleed through" unless kept in climate con-
trolled conditions free of dust and humidity. In an earlier study conducted by the
Institute, we documented the fact that tapes are usually kept on open shelves or,
at best, in metal filing cabinets even when they are stored in courthouses.

COST CENTERS ATTENDANT TO TAKING AND USING A DEPOSITION

The historical notes to the Federal Rules of Civil Procedure 30(bX4) declared in
1970 that provision is made for the recording of testimony by other than steno-
graphic means to ". . . facilitate less expensive procedures . . .Significantly, there
is not empirical evidence to indicate why the drafters presumed that methods other
than stenographic means would, indeed, be less costly. The historical notes do con-
tinue, however, by explaining that because electronic or photographic means ". . .
give rise to problems of accuracy and trustworthiness, the party taking the deposi-
tion is required to apply for a court order . . ."

The Justice Research Institute in 1992 conducted a cost-benefit analysis of all rel-
evant costs in the deposition process utilizing audio recording, court reporters using
computer-aided transcription equipment, and video recording. Because there is
rightly a desire today to bring tne cost of litigation under closer scrutiny, we em-
ployed a cost-benefit analysis approach because it concentrates attention on basic
issues. It also tests the "soundness" of proposed activities by a calculation of the
value of the resources to be employed in them (the cost) which is compared with
the value of the goods or services to be produced (the benefit). After an exhaustive
literature review, we conducted on-site analysis and data collection in three geo-
graphically diverse areas and conducted in-person interviews with attorneys in gov-
ernment and in private practice (representing both plaintiffs and defendants), as
well as with freelance court reporters, audiotape and videotape transcribers and
video technicians.

In addition to a number of accepted direct cost centers, such as the cost of taking