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

videotaped deposition are unregulated."

Instances of videotape equipment failure and defective tapes in court and under
controlled conditions are numerous.'^ These facts raise serious questions about opportunities



"The author of a National Center for State Courts report on videotaping summarizes the
views of Professor Saari by observing "The union of understanding between court reporter
and lawyer about what is relevant to the record is central to Saari 's argument that court
reporters, like lawyers, are professionals.," Videotape Trial Records , p. 96 (1990).

'*We have found no certification boards on standards for transcribers.

"In a 1992 study, a Kentucky court administrator despaired that a problem with
videotaping was that "... the courtroom monitor frequently does not know when a breakdown
is occurring. Thus, some days we may have pictures without sound, and on other days,
sound without clear pictures ..." Court Reporting Technologies: A Cost-Benefit Analysis
and Qualitative Assessment . JRI, p. 22 (1992).



187



for equipment failures in lawyers' offices and liie impaci on the justice system when there is
a delay between videotaping and transcription.

Also, the integrity and accuracy of the record being produced is more likely
compromised by the involvement of multiple parties, i.e. a videotape operator and a
transcriber'* as contrasted with one individual both taking down and preparing a transcript
based upon computer-aided technology and the reporter's own built-in CAT dictionary.

In addition, because the CAT methodology records the words in writing simultaneous to
their being spoken, produces an instantaneous unedited hard copy transcript, with the
proceedings being stored on a computer disk for furilier use by attorneys and judges, the
process is self-contained, and the integrity and accuracy of depositions is greatly enhanced.

It is acknowledged universally that the computer is, and will be, the center-piece for
information transmission woridwide. Law offices, courts and government, at all levels, are
increasingly being computerized. Thus, it is important for policymakers not to encourage the
use of systems which will forestall or impede the computerization of court record making,
stunting opportunities for system advancement compatible with other branches of government
and the private sector, and actually costing government and the public more money over
time.

Also, a CAT deposition is readily usable today as a component of a computer-integrated
courtroom (CIC). The emergence and growth of CIC courtrooms is taking place in both
state and federal court systems.

2. The Deposition Process

The practice of deposing witnesses and the reliance upon the deposition in the
settlement or progress of a case essentially is manifest in one of two scenarios: (I) the



'*The problems for transcribers relying on tapes is highlighted by a statement printed
here in its entirety from the chief of reporting services in New Jersey to transcribers: "The
terms 'indiscernible' and 'inaudible' can no longer be used in Superior Court transcripts.
Transcribers must listen to each track of the tape until they can discern what was said. The
only exception to this is that the term 'indiscernible' may be used when it is clear something
was said that is part of the record and no track recorded it." Superior Court of New Jersey,
Appellate Division, Unpublished memorandum to transcribers (dated October 2, 1991).



fll-9Sft n - Q4 _ 7



188



deposition is taken, is utilized by tiie parties for settlement or trial preparations and is not
introduced at trial; (2) the same process is replicated, and the deposition is introduced at
trial.

In studies conducted by the Institute within the past 12 months as referenced earlier, the
deposition process was examined in the states of Alabama, California, and New Jersey.
Attorneys were interviewed who practice in both federal and state courts. Although
videotape depositions were infrequently employed, they were never introduced into court in
any of the jurisdictions without an accompanying printed transcript." Thus, the reality is
that if a deposition is going to be used in court, it will be transcribed. One could therefore
conclude that the use of deposition methods other than by a court reporter using CAT places
one in a kind of "Russian roulette" where one is wagering on the odds that a deposition will
not be used at trial.

Even when a deposition is not introduced in court, if it is going to be utilized it must be
reviewed. If review time of a videotape, as even videotape proponents acknowledge, takes
three to four times longer than reviewing a transcript, then opportunities for error and
inaccurate conclusions are increased.'" Quite obviously, additional review time results in
additional charges and costs to clients.



"Attorneys in Alabama reported that for reasons which are inexplicable, a practice
commenced of videotaping physicians' depositions. Attorneys in California (in private
practice and in government) advised that videotaping was frequently employed as an
intimidating tactic.

'"In discussing "ease of review," the National Center for State Courts' study on
videotaping found, "The fact that a videotaped record is more difficult to review is obvious
to anyone who compares the two experiences, and no conclusion from the evaluation
emerged as clearly as this one: attorneys and judges do not like to work with the tape
routinely, and there is nearly universal agreement that it is more time-consuming to work
with a videotape than with a written transcript.." Videotaping Trial Records , p. 54 (1990).
Also, see The Cost of Depositions: A Cost-Benefit Analysis , at p. 9, JRI (1992) where
transcribers and court reporters advised that "... when a transcript is prepared after the fact
(i.e., sometime after taking a videotape), the cost of transcribing from a playback machine
can double or triple the cost of the deposition."



189



3. The Storage of Tapes, Hard Copy and ASCII Disks

The "future" accuracy as related to the long-term life and dependability of videotapes 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. It is known and documented that tapes become
brittle and "bleed through" unless kept in climate controlled conditions, free of dust and
humidity. In an earlier study conducted by the Institute, it was documented that tapes are
usually kept on open shelves or, at best, in metal filing cabinets.

In contrast, the hard copy life of depositions substantially exceeds the ten years required
in most jurisdictions for court reporters to retain their case-related notes and materials.
Additionally, today attorneys may opt for an ASCII disk (computer compatible) in addition to
or in lieu of hard copy. As indicated earlier, the computer compatibility of an ASCII disk,
in concert with its having been contemporaneously transcribed, underscores the integrity and
accuracy of the document.

4. The Uhimate Need for a Transcript at Trial and on Appeal

The importance and, indeed, the requirement for transcripts and the involvement of
court reporters at trial and the requirement of transcripts on appellate review should not be
lost on policymakers contemplating related rules changes:



• Proponents of options other than court reporters invariably acknowledge that court
reporters should be available for "important civil cases and criminal trials." This
was yet again acknowledged in the 1991 Supreme Court Report of the State of New
Jersey where the report called for the use of other methods, but said that official
court reporters should continue to make the record in "... capital cases, most jury
trials, and some exceptional non-jury trials ..."

• As to appellate review, both federal and state intermediate and supreme courts, with
very few exceptions, require a hard copy transcript of all proceedings under review.
Every federal circuit and state supreme courts in New Jersey, Michigan and most
other states have such a requirement.

• A chairman of the Civil Rules Subcommittee of the Judicial Conference of the
United States acknowledged in a May I, 1992, letter to the chairman of the



190



Standing Committee on Rules of Practice and Procedure that "none of the published
amendments has received a larger number of objections than the proposal relieving
parties from the necessity of obtaining court approval or agreement of other parties
as a condition to taking depositions by non-stenographic means." The chairman
goes on to say, however, that any objections to the proposed amendments have been
adequately dealt with because new Rule 30(b)(4) permits "... other parties to
arrange for a stenographic transcription if they choose to do so and require a party
proposing to use video or audio recordings at trial to prepare and furnish to
adversaries and the court a transcript of the portions to be offered." Thus, once
again, the importance and value of transcripts is underscored.

In the face of facts disclosing that depositions admitted at trial are required to be in
written transcription format; court reporters preparing transcripts are required for all
"important" cases; and appellate and supreme courts invariably require hard copy transcripts
and do not permit videotapes, the question immediately arises as to why the taking of
depositions should be relegated to a lesser standard, and does the differentiation in practices
suggest that accuracy and accessibility are important at the trial and appellate levels, but are
any less an issue at the pretrial stage. In view of the increasing importance of the settlement
of cases in light of growing civil caseloads, accurate and accessible depositions would appear
to take on heightened importance in the civil justice arena.''

5. The Cost of Depositions

In 1992, the Justice Research Institute conducted a cost-benefit analysis study and
constructed cost-benefit analysis models for depositions by audio, video and court reporter.
The models considered depositions taken but not used in court, depositions introduced at trial
with a transcript, and also the rare instance when a deposition was introduced at trial without
a transcript. Cost-benefit analysis models revealed that the cost of recording a def)Osition by
a court reporter using computer-aided transcription is the least costly method across the



"In regard to the videotaping of depositions, a proponent of videotaping in a published
California CLE article was frank to say, "Videotaping without a court reporter present raises
problems. There is still no good way to rapidly review a videotape, to edit it, or to present
it to the court for motions. In my opinion, videotaping should always be accompanied by a
stenographic record.," "Trial Run, the Videotape Revolution," 12 CEB CIV LR . p. 190
(August 1990).



191



board. This is true whether the deposition is taken and the case

settles, or whether a transcript is subsequently made from a videotape or, even in the rare

instance, where a videotape is utilized without a transcript in court. "-

Thus, the case established quantitatively of a lower cost for court reporter (CAT)
depositions is fully compatible with the theme and import of the Civil Justice Reform Act of
1990. That congressional legislation admonished the judicial branch to fashion methods and
procedures which would bring about a reduction in the cost of civil litigation. Thus, it
would seem contrary to other cost reduction initiatives within the third branch to promulgate
a rule of practice and procedure which would, in fact, increase the cost of civil litigation.

Additionally, the time consumed by intermediate appellate court and supreme court
judges, central legal staff, personal law clerks and private practitioners in reviewing
videotape records on appeal is substantial. Lawyers are trained, whether on traditional hard
copy or through computer screens, to read quickly the written word. By contrast, the
forwarding and reversing of videotapes and the attempt to lollow tape logs of widely varying
accuracy and style results in an inordinate time consumption and expense to the system.
Estimates from appellate judges and lawyers indicate that the time required to review on a
videotape is tripled or quadrupled over lexiew of a written transcript.

Also, if the use of videotape depositions is encouraged, then court systems must be
prepared to purchase playback equipment for all justice system participants, including trial
judges, appellate judges, public defenders, corrections officials, and clerks" office personnel.
To note just one figure in these regards, the cost of video equipment for a nine-judge
intermediate appellate court today approximates $32,000. Plaintiffs and defense attorneys
must also purchase equipment and tapes if the video process is employed.



^'As to the cost of depositions not used in court, the relative costs were $795 for a court
reporter and $1,910 for videotape. For a deposition introduced at trial, the costs were $795
for a court reporter and $1580 for video. The Cost of Depositions: A Cost-Benefit
Analysis . JRI, pp. 1 1 - 15 (1992).



192



6. Conclusions

Our analysis of the issues concerning deposition methodologies by court reporters
utilizing CAT or videotaping, and our review of the literature and the earlier referenced field
studies, lead us to the following conclusions:

• Accuracy should be the standard for selecting a deposition methodology. Both
historically and at the present a court reporter deposition is the o'lalitative 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 of the concept of "faithfulness," or a faithful representation
of what was said at a legal event.

• It should not be lost on policymakers considering rules related to depositions that
depositions admitted into 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 the state court systems, will not
permit videotapes but require hard copy transcription. The deposition process
should not be relegated to a lesser standard.

• The Civil Justice Reform Act of 1990 promulgated by the Congress directed United
States district courts to fashion rules and processes for reducing the cost of civil
litigation. A recent cost-benefit analysis of methods of taking depositions found that
across the board court reporter depositions were the least expensive to the entire
system. It would be in conflict with the Civil Justice Reform Act to promulgate a
rule which would increase the cost of civil litigation while in no demonstrable
fashion enhancing levels of accuracy.

• Delay in the transcription of a videotape raises serious questions about storage life
of the tape, the quality of the tape and equipment at the original taping, and the
substantial increase in transcription costs.

• It is intuitive that multiple players in the deposition process, i.e., a videotape
operator and a transcriber, enhance the likelihood of error, "unintelligibles", and
"inaudibles."

• The computer character of a CAT deposition is compatible today with automated
courts and law offices. Videotape depositions are not, and their use insures that
cost will be increased to court systems, clients, and attorneys while forestalling
system wide automation.



193



Bibliography



"Analysis of the Federal Judicial Center's Evaluation of Stenographic and Audiotape Methods
for United States District Court Reporting," prepared by Resource Planning
Corporation. (October 12, 1983).

A Comparative Evaluation of Stenograph i c and Audiotape Methods for United Slates District
Court Reporting , by J. Michael Greenwood, Julie Homey. M. Daniel Jacoubovitch
Frances B. Lowenstein, and Russell R. Wheeler, Federal Judicial Center, (July 1983).

"Computer Integrated Courtrooms - Moving the Judicial System into the Twenty-First
Century," Martin H. Block, Trial , (September 1990).

"Computer-Aided Transcription Pilot Project: Final Evaluation Report," prepared for the
State of Florida, (April 1988).

The Cost of Depositions: A Cost-Benefit Analvsis . JRl, (September 17, 1992).

The Court and Free-lance Reporter Profession , by David J. Saari, Greenwood Press, Inc.,
(1988).

Court Reporting Technologies: A Cost-Benefit Analysis and Oualitative Assessment , JRI,
(September 3, 1992).

"The Courtroom of the Future," by Roger G. Strand, The Judges Journal , (Spring 1989).

"Effect of Video Transcription Upon Appellate Process: Survey of Appellate Practitioners,"
Memorandum of Neil Vincent Wake, Hon. Jefferson L. Lankford, to Hon. Sarah D.
Grant, Chair, Committee on Video Transcription, (May 9, 1990).

General Accounting Office, Federal Court Reporting System (1982).

Judicial Improvements Act of 1990, codified at 28 U.S.C. §§ 471 - 482.

"Law & Technology: The Case of the Computerized Courtroom," Government Technology ,
by John Metzger, (June 1992).

Making the Record: Court Reporting and Technology . JRl, (March 1992).

Memorandum from Richard V. Peavy, Utah State Court Administrator, to Utah Senator Kay
Cornaby of the Joint Executive/Judicial Appropriation Subcommittee on "Studies
Regarding Shorthand Reporters in the Utah District Court," (January 25, 1982).



194



"Phoenix's Courtroom of the Future," by Diane Knox, American Lawyer Media. LP .
Technology Supplement, (1991).

"Report of the Committee to Evaluate Electronic Recording Techniques," New York State,
(1971).

"Sound Recording in New Jersey 1986 - 1990," orepared by the Office of Reporting
Ser\'ices, (April 1990).

"Status of Court Reporting in New Jersey," prepared by the Office of Reporting Services,
(May 1990).

"Studies Regarding Shorthand Reporters in the Utah District Court," by Richard V. Peay,
State Court Administrator, (January 25, 1982).

Superior Court of New Jersey, Appellate Division, unpublished memorandum to
transcribers (dated October 2, 1991).

Superior Court, County of Los Angeles, Recording and Transcribing of Los Angeles
Superior Court Proceedings, (1972).

Supreme Court, State of New Jersey, Committee on Court Reporting . Final Report . (May
22, 1991).

"Trial Run, the Videotape Revolution," 12 CEB CivLR 190, (August 1990).

28 U.S.C. §§471 -482.

28 U.S.C. § 753(b).

Federal Courts Improvement Act of 1983 § 401(a).

U.S. v. Perkins . 498 F.2d 1054 (1974).

U.S. V. Taylor . 607 F.2d 153 (1979).

Videotaped Trial Records: Evaluation and Guide , by William E. Hewitt, National Center
for State Courts (1990).

Webster's New Collegiate Dictionary .

"What is a Computer Integrated Courtroom Anyway?" by Joseph R. Kariovits, NSR .
(February 1990).

"Who Needs a Court Reporter Anyway? It's Only the Official Record!" by Anne B. Noble,
Journal of Court Reporting . Vol. 53 No. 2 (December 1991).



195



Appendix 3. — Supplemental Statement Submitted by Hon.
William W Schwarzer, Senior U.S. District Judge, U.S.
District Court for the Northern District of California,
and Director, Federal Judicial Center, June 28, 1993



This supplemental statement is being submitted at the request of the Chainnan 1) to respond
to the subcommittee's questions, and 2) to provide certain additional information.

My previously-submitted statement noted that the proposed amendments of the discovery
rules are aimed principally at cases involving relatively small stakes, since in large cases the court
is likely to enter case management orders dealing specifically with discovery matters. The
amendments implement the policy of proportionality in discovery underlying Rule 26.' At present,
notwithstanding these provisions, discovery activity, for a variety reasons such as excessive
adversariness. attorney inexperience or lack of competence, or profit motives, frequently becomes
disproportionate to the stakes in the case: many lawyers will say that it is difficult if not impossible
to liugate economically a case involving less than, say, S200.000 in federal court, given the cost of
discovery. There are many more civil cases involving stakes of less than 5200.000 than there are
"big" cases (such as product liability cases).^ Although judges have the authority to control the
amount of discovery activity in these cases, the heavy calendar burdens in many courts often make
this impractical except in the large cases.

These amendments would introduce a number of self-executing measures aimed at reducing
discovery activity (including, for example, the presumptive limit often depositions per side).
Mandatory pre-discovery disclosure of coit information is one of these measures. It would reduce
the need for certain discovery and make remaining discovery more efficient in three ways: 1) by
requiring disclosure of prospective wimesses. parties will not have to incur the expense of trying to
discover their identity; 2) by requiring identification of relevant documents, parties will not have to
go through the often time-consuming, expensive, and contentious process of obtaining that
information: and 3) by giving parties this information early on. ihey will be better able to
determine their discovery needs and conduct whatever discovery is needed more efficiently and
economically. The early exchange of this information will have the additional benefit of facilitating
the evaluation of the case, leading to earlier settlements.

As previously noted, about 20 districts have incorporated into their expense and delay
reduction plans under the Civil Justice Refotm Act some form of mandatory disclosure. No



'Rule 26(b) presently provides: "The frequency or extent of use of the discovery methods . . . shall be limited by
(he coun if it detcnnincs that . . . (iii) the discovery is unduly burdensome or expensive, taking into account the
needs of the n^r , the amount in controversy, limitauons on the panics resources, and the imponance of the issues at
Slake in the liiigauon."

^Tbe nC data base discloses that of the universe of complaints widi prayers alleging specific dollar amounts,
approximately two thuds seek less than S200.000. AnoUier mdicauon of the prevalence of small cases is that of the
civil cases going to uul. two Uiuds an: mcd m two days or less. 1992 Report of tlic Adminisuauve Office of the
United State. Tabic C-S



196



studies have been conducted of these programs but none of the informal reports we receive from
time to time from these disuicts have indicated that problems have been encountered.

Fmally it should be noted that while there has been considerable conaoversy over pre-
discovery mandatory disclosure, it is only one part of the package of changes incorporated in the
proposed amendment of Rule 26. Pre-discovery disclosure is one of three levels of disclosure
called for by the proposed amendment. The other two levels are: 1) disclosure of expert witness
reports and their supporting data not less than 90 days before trial, and 2) disclosure of trial
witnesses and exhibits not less than 30 days before trial. These provisions incorporate what is
generally regarded as sound case management practice and can make significant contributions to
the reduction of litigation cost and delay. There appears to be no opposition to these amendments.

With respect to the amendment of Rule 30 concerning the transcription of depositions, it
should be noted that Rule 32 contains significant limitations on the use of depositions at trial.
Generally a deposition may be used against an adverse party, to impeach a witness, or where a
witness is unavailable. As a practical matter, lawyers will rarely present evidence by deposition if
a live witness is available. They take depositions primarily for two purposes: to discover what an
adverse witness would say if called and to preserve the testimony of a wimess who may become
unavailable. At trial their principal use is for impeachment, but realistically it is more often to
threaten impeachment than to actually establish it In sum. although many depositions are taken.
few are ever used at trial and of those that are used only a very small fraction of the transcript is
referred to. Unfortunately, no data are available to permit one to quantify these observations but
experience leads me to believe (and this, admittedly, is only an educated guess) that less than 5%
of the transcript pages of depositions taken ever appear in a trial record. "^