We’re On The Record.
We’ve all experienced at one time or another two attorneys at odds with whether or not the parties should go off the record. This matter is further complicated if and when the attorney hiring you wants to go off the record and others in the room do not. Succinctly, when there is a disagreement as to whether or not to be off the record, it’s good practice to remain on. If it becomes an issue, politely explain that because there is a disagreement as to whether or not to go off the record, it is good reporting practice to remain on because the portion may be stricken by a judge later if it is in, but can’t very well be made up later if it is not in. Be confident and know that you are doing the right thing ethically and professionally. If you are threatened with non-payment by an attorney, you do not have to make that attorney aware, but just know for yourself that they have to pay you pursuant to General Business Law 399-cc.
The reporting company may or may not support you dependent on different factors. Frankly, if you are polite, professional, and principled, then it is a serious reflection on the company and its opinion of reporters if they do not back you when you’ve committed yourself to good reporting practice. Remember, if you edit the transcript in favor of somebody, and it becomes a problem, it’s on you. If they edit it without your consent, it’s on them. Anybody in the room can legally be recording the entire deposition without your knowledge because New York, as of writing, is a one-party consent state [Penal Law 250.00(2)]. Succinctly, if a reporting agency is trying to get you to change something you know in your gut should be left alone, leave it alone, or you might find yourself charged with forgery [Penal Law 170.05].
Off the record? Only if all parties agree or if the judge or arbitrator orders you to be off the record.