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

Mr. Hughes. That is how I understand the proposal.

Mr. Frazza. That is correct. There will be arguments whether it
is or isn't.

Mr. Hughes. That is what I said earlier. There will be argu-
ments as to the disputed facts. I understand the concern. What you
think is disputed may be vastly different from what your adversary
thinks are disputed facts.

Mr. Frazza. That will take the time of the court and us, too.

Mr. Hughes. The gentleman from California.

Mr. Edwards. Thank you, Mr. Chairman.

As I understand it, plaintiffs' lawyers would benefit from this
change; defense lawyers representing firms being sued would be
disadvantaged; is that correct?

Mr. CORTESE. Mr. Edwards, I should point out the Association of
Trial Lawyers of America, the major plaintiffs' association, is on
record opposing the form of disclosure that was published for
comment.

And a number of organizations, consumer oriented organizations,
are also on record opposing.

Mr. Edwards. Who is for this?

Mr. CoRTESE. Apparently the judges and perhaps one or two
other individual practitioners. We can't find anybody that is really
for it.

Mr. Edwards. The Association of Trial Lawyers of America, their
association, is it in favor of this change?

Mr. CoRTESE. No. My understanding is they have not yet taken
a position with respect to the current version of 26(a)(1). But I can
tell you specifically that they filed comments opposing the earlier
version that was published for comment previously. That is one of
the problems we have here. The committee changed its mind.

First, it published one formulation for comment. Then it decided
to withdraw that and authorize the courts to experiment under the
Civil Justice Reform Act. Then it changed its mind again at the
next meeting. They said let's have a different formulation which
was, I thought, a slightly improved formulation of the same flawed
concept and will recommend that be adopted by the Supreme
Court.

That is what your committee now has before it. And it was in
that process with respect primarily to the original published pro-
posal that many people took a position. Now they are in the process
of taking positions with respect to the current one; but you cannot
conclude on that record that the plaintiffs are for it and the defend-
ants are against it. Because as far as I can tell, all the customers
are opposed to it. It is only the judges that think, well, let's try it.



159

Mr. Edwards. If your practice consisted of suing big companies,
which apparently some lawyers do most of the time, wouldn't you
be in favor of it?

Mr. CoRTESE. Should you be in favor of it?

Mr. Edwards. Wouldn't you just actually be in favor of it? It will
make your job a lot easier?

Mr. CoRTESE. No. No. It wouldn't. It would make my job more
complicated for the reasons Mr. Higgins and Mr. Frazza pointed
out and the evidence we have in the record from Maricopa County
and from the examples I cited to the committee.

It is another layer that unduly complicates the process. It will
not save any time. It is this one-size-fits-all approach to litigation.
In those cases, and I have cited evidence of some very recent yet
unpublished studies that there isn't a discovery problem in perhaps
60 percent of the cases because there either is no discovery or the
cases are so simple that there are no discovery problems.

It is in the cases where we have a discovery problem that we
feel — and we feel very strongly — disclosure is going to add to those
problems.

So my sense of it is that disclosure is really a solution chasing
a problem because it will not solve problems in the cases where we
really need to solve problems. It is going to add to them.

Mr. Frazza. Also, most lawyers know cases are settled on the
courthouse steps. The overwhelming number of cases brought
against Johnson & Johnson by plaintiffs, be they product liability
cases or whatever, those lawyers are not the ones that engage in
this discovery I was wailing about. They know that the time a case
settles is when you are walking up the steps. You go into the
judge's office; he says if you cannot settle this, we start picking a
jury at 10 a.m. The overwhelming amount of plaintiffs' lawyers as
you think of them — some represent plaintiffs and defendants — are
well aware of that fact.

Time is on your side as the defendant. They want to get it into
the courthouse and try the case there; not litigation lawyers as I
said. They are trial lawyers.

Mr. Edwards. Would you be in favor of an amendment that
would put time limitations on this process?

Mr. Frazza. Absolutely.

Mr. Edwards. You would?

Mr. Frazza. I would be afraid of a general amendment; but I
would be in favor of an amendment that would give the trial judge
broad discretion to put time limits on discovery. The problem is
that it takes so long to get to trial in so many cases that the judges
don't care, and the discovery fills up the vacuum until the judge
deals with it. I would be in favor of a provision that would say all
discovery will be through by x date.

Mr. Edwards. Would you all be in favor of something like that?

Mr. Dunlap. Speaking for Intel and the experiences we have had
like in the ITC where there are time limits, those are very helpful.
I think that the problem is that they may need to be different in
different cases. Right now, we rely on the judges to enforce a time
limit of some kind. So helpful guidance on, you know, intellectual
property cases in a certain amount of time.



160

I would also like to respond to the neutrality question, because
Intel is on both sides. We are defendants in lawsuits. I think that
these rules are neutral. I don't think they particularly help a plain-
tiff or a defendant. Maybe the problem is this hypothetical of the
dumb attorney on the other side. I haven't experienced that hypo-
thetical. I mean I have always had in the Federal court cases here,
we have had attorneys on the other side that knew the questions
to ask; and the type of information that is going to be disclosed is
going to be attained one way or the other.

In the worst case, it takes the other side an extra set of docu-
ment requests. So instead of wasting three sets of papers, you
waste less paper. The type of information that I believe is intended
to be disclosed is the kind of information that is clearly the core
of the case.

Mr. Edwards. Thank you.

Thank you, Mr. Chairman.

Mr. Hughes. Well, the panel has been very, very helpful to us.

I don't think there is any question but that we could free up
more judge time early on by a disclosure process. They are bogged
down with criminal cases in most instances. We could settle a case
a lot sooner because not only do plaintiffs' attorneys wait, defense
attorneys also wait until that jury is about to be empaneled. They
also know that they have time.

Unfortunately, part of the problem is that judges often do not
focus in on a case until after discovery. It goes on, and on, and on,
sometimes for years. I have had personal experiences with that.
That is a big part of the problem.

So rule 16 which gets the judges in early is a step in the right
direction. I assume all of you agree with that.

Getting the parties together early on in the process, you all agree
with that?

The same thing with adversaries. Thev often begin to focus in
when they pick up the file ready for trial because the discovery is
often done by some other young lawyer in the office rather than the
one that is going to try the case or make the decision. He hasn't
focused in on the case.

Well, you have given us a lot to think about today. We appreciate
the time you have given us and your patience.

We thank you very much. That completes the hearing for today.
The subcommittee stands adjourned.

[Whereupon, at 3 p.m., the subcommittee adjourned, to reconvene
subject to the call of the Chair.]



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APPENDIXES



Appendix 1. — Statement of Hon. Bill McCollum, a
Representative in Congress From the State of Florida



I WOULD LIKE TO MAKE A STATEMENT FOR THE RECORD REGARDING THE
PROPOSED CHANGE TO RULE 30(b) (4) OF THE FEDERAL RULES OF CIVIL
PROCEDURE. IN MARCH OF THIS YEAR I WROTE A LETTER TO CHIEF
JUSTICE REHNQUIST WHEN THIS PROPOSED CHANGE WAS PENDING BEFORE
THE SUPREME COURT. AS I EXPRESSED IN MY LETTER TO THE CHIEF
JUSTICE, I HAVE SINCERE CONCERNS REGARDING THIS PROPOSED CHANGE.
PURSUANT TO RULE 30(b) (4) , NONSTENOGRAPHIC MEANS MAY CURRENTLY 3E
USED TO RECORD A DEPOSITION WHEN THE PARTIES SO STIPULATE OR WHEN
SO ORDERED 3Y THE COURT. I HAVE NOT BEEN PRESENTED WITH ANY
EVIDENCE AS TO WHY THESE AVENUES ARE NOT SUFFICIENT OR WHY THE
CHANGE IS JUSTIFIED ON EITHER COST SAVINGS OR EFFICIENCY
ENHANCING GROUNDS.

ACCORDING TO THE JUSTICE RESEARCH INSTITUTE, THE AUDIOTAPE AND
VIDEOTAPE DEPOSITION PROCESS IS MORE COSTLY THAN THE COURT
REPORTER COMPUTER AIDED TRANSCRIPTION SYSTEM AND THE -REVIEW Or
THE TAPES BY JUDGES AND ATTORNEYS TAKES THREE TO FOUR TIMES
LONGER THAN THE REVIEW OF A HARD COPY TRANSCRIPT. IN ADDITION,
THE ACCURACY AND INTEGRITY OF THE RECORD WOULD BE WEAKENED BY
THIS CHANGE BECAUSE OF THE SUSCEPTIBILITY OF THE AUDIOTAPE AND
VIDEOTAPE DEPOSITION PROCESS TO EQUIPMENT MALFUNCTION, RECORD
ALTERATIONS, AND SIMPLE CONFUSION OF THE RECORD IF SEVERAL PEOPLE
SPEAK SIMULTANEOUSLY. JUDICIAL ECONOMY AND EFFICIENCY WOULD NOT
BE SERVED BY THIS PROPOSED CHANGE.

IN ADDITION, I AM CONCERNED BY THE IMPACT THIS CHANGE WOULD HAVE
ON PARTICIPATION BY THE HEARING IMPAIRED AND THE VISUALLY
IMPAIRED IN THE JUDICIAL SYSTEM. FINALLY, THE IMPACT ON THE
40,000 COL*RT REPORTERS WHO HAVE SERVED THE SYSTEM SO WELL MUST
NOT BE IGNORED.

IN MY JUDGEMENT, IT IS IMPORTANT THAT THE MEMBERS OF THE
SUBCOMMITTEE WEIGH THESE ISSUES AS WE CONSIDER THE PROPOSED
CHANGE TO RULE 30(c) (4) .



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Appendix 2.— The Cost of Depositions," October 28, 1992; and
"Depositions and Accuracy," April 1, 1993, Studies Con-
ducted BY THE Justice Research Institute



Executive Summary

This report is based on a study of the three methodologies for making and using a deposition:
audio, video and a court reporter using computer-aided transcription (CAT). The specific focus is
on the development of cost-benefit models which examine both direct and hidden costs.

After describing the study methodology employed, the report evaluates the quantitative and
qualitative arguments and facts.

Principal among the report's findings and conclusions are the following:

• An examination of all costs, direct and hidden, in both the taking and use of depositions
establishes that audio and video deposition processes are more costly than the utilization of a court
reporter using CAT.

• Attorneys express concern over the indiscriminate use of video where no standards exist
for taking video depositions and where technicians have no cenification requirements.

• In qualitative terms a deposition prepared by a professionally certified court reporter is itis
standard for accuracy and efficiency of use as seen by trial practitioners.

• System participants (lawyers and judges) utilizing either audiotapes or videotapes report
the time required to review a tape increases by a factor of three to four over the use of a hard copy
transcript. This increases the cost to the justice system and to the litigant.

• Since the taking of a deposition by a court reporter using computer-aided transcription is
less costly than employing audio or videotape, it is fully compatible with the admonitions of the
Civil Justice Reform Act of 1990 to reduce the cost of civil litigation.

• The court reporter based CAT system is fully compatible with the mandates of the Ameri-
cans With Disabilities Act of 1990, affording accessibility to the judicial system for the millions of
Americans who are hearing impaired and blind.



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I. Introduction and Methodology oi' the Study
Introduction

The historical notes to Federal Rule of Civil Procedure (FRCP) 30(b)(4) declared in 1970
that provision is made for the recording of testimony by other than stenographic means to "...fa-
cilitate less expensive procedures...." Significantly, there is no empirical evidence to indicate
why the drafters presumed that methods other than stenographic means would, indeed, be less
costly. The historical notes do continue, however, by explaining that because electronic or photo-
graphic means "...give rise to problems of accuracy and trustworthiness, the pany taking the
deposition is required to apply for a coun order...."

Cognizant that the Standing Committee based its proposed changes to FRCP 30(b)(4) in part
on cost considerations, the National Court Reporters Association (NCRA) sought to answer the
question, is one method of taking a deposition in fact less costly than another? The Justice Re-
search Institute was engaged in 1992 by NCRA to conduct a cost-benefit analysis of all relevant
costs in the deposition process utilizing audio recording, court reporters using computer-aided
transcription, and video recording.

It was represented by NCRA and required by the Institute that the study, evaluations and
conclusions should be free of influence and unfettered throughout in order that an intellectually
honest inquiry might be made. The Institute can report here that those requirements have been
met.

Methodology of the Study

There is rightly a desire today to bring the cost of litigation under closer scrutiny. The effort
involved in a cost-benefit analysis addresses that desire because it concentrates attention on basic
issues. Necessarily, the approach to the subject matter is detailed and methodical.

This study involved the following approach to the information: the collection of data, the
construction of cost-benefit analysis models and ultimately the final analysis and conclusions
emanating therefrom.

(a) The study commenced with an exhaustive literature search and a review of all relevant



164



available materials, published and unpublished. Research facilities consulted included the libraries
of the National Center for State Courts, the Federal Judicial Center, the United Sutes Court of
Appeals for the Third Circuit, the University of Pennsylvania Law School, and the Philadelphia
Bar Association.

(b) It was determined that the modest information available from secondary sources should
be enhanced with information collected from contemporary data sites.

(c) Given the reality of time constraints, it was determined that three locations for data
collection would be identified by Institute staff. The criteria for data collection sites were then
developed and locations were chosen predicated upon:

(1) Geographic diversity.

(2) State rules of practice and procedure patterned on the Federal Rules.

(3) Access to data.

(4) The presence of cooperative contacts in the jurisdictions including attorneys, court
reporters and audio/video persons knowledgeable about the methods being studied.

Based upon these criteria the following data sites were selected:

(1) Birmingham, Alabama

(2) Los Angeles, California

(3) New Jersey

(d) Telephonic discussions with participants preceded on-site visits to each data collection
location. In-person interviews were subsequently conducted with attorneys in government and in
private practice, the latter reflecting large firms and sole practitioners (representing both plaintiffs
and defendants). Interviews were also held with freelance court reporters, audiotape and video-
tape transcribers and video technicians.

(e) Data site information was then consolidated with all other knowledge, permitting the
development of a cost-benefit analysis model and the resulting final analysis and conclusions.



165

II. Cost Centers Attendant to Taking and Using a Deposition
Introduction

In reviewing and analyzing the cost figures secured from the data sites, we have documented
recurring and expected typical "direct costs" for a given method of l^.king and using a deposition.
We define "direct costs" as those expenditures, capital or recurring, which are explicitly acknowl-
edged as a part of a given deposition method.

We have also found a number of "hidden costs." A "hidden cost" is defined as a cost associ-
ated with producing or utilizing a 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, ux payers, attorneys or the
litigants themselves.

In this section of the report we identify direct and hidden cost centers; that is, the nature and
identity of where the cost for making and utilizing a deposition occur. In the cost-benefit analysis
models which appear later, the numbers, or dollar costs, are described with particularity. In this
section we have also addressed cost centers for audio and video together. Though the actual
dollars refiected in the centers differ and will be accounted for separately in the cost-benefit
analysis model, the cost centers themselves are the same.

1. Direct and Hidden Costs of Audio and Video

(a) Direct cost centers

• A setup fee and daily rate for recording the deposition by audiotape or videotape,

• The cost of transcribing the tape.

(b) Hidden Cost Centers

• Cost of rental or purchase of playback equipment in court.

• Cost of playback equipment in judges' chambers.

• Cost of playback equipment in attorneys' offices (government attorneys and private
counsel).

• Cost of rental or purchase of playback equipment by witnesses.



166



• The time consumed by trial and appellate judges in reviewing a tape.

• The cost to litigants of additional review time of tapes by trial counsel which attorneys
have estimated increase by a factor of three to four times, in order to review and study a
tape in preparation for trial in contrast to a hard copy transcript.

2. Direct and Hidden Costs of a Court Reporter Using Computer-Aided Transcription

(a) Direct Cost Centers

• The cost of taking and transcribing the deposition.

(b) Hidden Cost Centers

• Mailing.

• Notary fees.



167

III. Qualitative Considerations
Introduction

A cost-benefit analysis 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). Thus, it is implicit in such an analysis to consider
perceived benefits or qualitative considerations along with costs.

For each of the methodologies of making and utilizing a deposition, we indicate here a
number of recurring salient points from our findings which we believe are important qualitative
considerations. The list is not an exhaustive one: rather, it reHccts significant points garnered in
our study and investigations.

1. Audio

• Not a single attorney interviewed for this study had confidence in audiotape depositions.
One attorney even admitted that if the questioning was "going badly," he would cough or rustle
papers in front of his microphone to distort the subsequent transcription.

• There presently does not exist (nor do the proposed changes to Rule 30 address) standards
to be employed in the taking of audiotape or videotape depositions. Neither docs the rule pro-
posed address certification for audio or video operators. In many states before a court reporter
may take a deposition, he or she must be a certified shorthand reporter who has passed a rigorous
testing process. In addition, a rigorous testing standard is maintained by the National Court
Reporters Association.

• Equipment malfunctions of audio equipment do occur. One intermediate appellate judge in
a companion study who has been listening to audiotapes for over ten years told us that there had
been "no discernable improvement in the quality of audiotapes during that ten-year period."

• Quality audio recording equipment is expensive and requires audio technicians Jto charge a
premium rate in order to get a return on their investment. Inferior equipment produces inaudible
and unusable results. When equipment malfunctions do happen, they are typically a result of
inadequate maintenance, operator inexperience or flawed tapes.



168



• We have found no jurisdiction that would permit the use of an audiotape deposition without
a transcript being prepared of the audiotape. Thus, a second fee is required, and frequently at a
higher rate, by a transcriber who was not present at the time the tape recording was taken.

• Audio recording systems are not computer driven nor interconnected with computers. The
introduction of such limited vision technologies is not cost efficient and delays the ultimate com-
putenzation of court operations.

• Most federal trial and appellate courts do not have audio playback equipment available.
Thus, if attorneys wish to play an audiotape to a court or jury, they must secure rental equipment
at a cost to the litigants and often with uncertain reliability.

• In using audiotape, it is critical to purchase high fidelity equipment and to be aware of
whether the transcriber has a two-track or four-track system which must be compatible with the
recording equipment. Otherwise, voices become mingled and sf)eak over the top of one another,
rendering an accurate transcription impossible.

• The quality of audiotapes varies greatly and impacts accuracy. Contributing factors include
articulation particles, level of background noise, and equipment which must be properly main-
tained

2. Video

• An Alabama attorney noted that the most serious potential miscarriage of the use of video-
tape depositions is the absence of any standards or organized rules for taking video depositions or
for using them in court.

• Most all of the qualitative considerations noted for audio are equally applicable to videotape
depositions.

• Attorneys in all three jurisdictions studied advised that video was a "valuable strategic tool
which could be manipulated to make a certain impact on a jury."

• In each of the jurisdictions studied, both state and federal courts require that a video deposi-
tion submitted in court must be accompanied by a written transcript. Thus, if a case is likely to go
to trial, or often to make that assessment, counsel must have the transcript prepared either at the
conclusion of the deposition being taken or at a later time and at a higher rate.



169



• One attorney expressed concern that videotape depositions were being used to enable law-
yers "to make speeches and to get information before a jury that otheruise would not be admis-
sible." This attorney added that it puts lawyers "in the performance mode and has the clear
potential to pervert justice."

• Audiotape and videotape transcribers as well as court reporters advise that when a transcript
is prepared after the fact (i.e., sometime after the taking of a videotape), the cost of transcribing
from a playback machine can double or triple the cost of the deposition.

• One videotape expert commented that for a tape to be used in court, it had to be indexed
and edited. He advised that this work is done by attorneys and paralegals and is "a very expensive
process. "

• Attorneys in ail three jurisdictions advised that videotape depositions were frequently used
to intimidate an opponent's witness. One attorney advised thai when he and his client arrived for
a videotape deposition, the office was set up like a movie set with multiple lights, cameras and
staff. He advised that the effect on his client was one of "total submission."

• A government attorney in Los Angeles advised that she is constantly before the court
seeking protective orders to prevent videotaped depositions of police officers and other public
officials whose identity must be protected. This attorney maintained that this consumes "an awful
lot of the court's time and is employed solely as an intimidating tactic."

3. Reporter Using Computer-Aided Transcription

• All attorneys interviewed agreed that a court reporter-prepared deposition is the qualitative
standard for accuracy and clarity to which all other methods must be compared.

• A court reporter using computer-aided transcription can provide both a hard copy transcript
and a computer disk to counsel.

• Computer disk depositions may be loaded into counsels' software and brought to court for
use on a stand-alone computer or as a part of a computer-integrated courtroom.

• A recently developed technology permits court reporters to provide "compressed tran-
scripts" which allow four to nine pages to be printed on a single page of transcript.

• A deposition reported by a court reporter can produce an instantaneous real time rough