We’re going to take a quick walk through all the law stenographers in NY might want to know. It’s not required that you know these things, but some of it may be relevant to you at some point and worth discussion. As a quick note, a lot of law regarding NYS cases can be found in the CPLR (Civil Procedure Law and Rules).
CPLR 2309, Oaths and Affirmations: This section dictates who can give oaths. It basically says anyone who can give an acknowledgment under the real property law.
CPLR 3113(a) and 3113(b) talk about before whom a deposition may be taken and describe how the officer administering the oath is supposed to act. It also goes at length to describe that the deposition is to continue without interruption and that objections are to be noted by the officer that swore in the witness or a person under their direction.
Real Property Law 301: This lists people that can take acknowledgments, and surprise, notaries can.
Brief warning: The answers you get from authority bodies can occasionally be wrong. This is not necessarily the fault of the authority body in this case. I was asking a question about the CSR (Certified Shorthand Reporter License) which is handled by a different part of the Department of State, as best I can tell, than the Notary License. This created the confusion in my warning example! If you’re going to ask an authority body a question, make sure you’re asking the right question to the right body.
Remote Swearing of Witnesses: Despite my warning above, this is an example of questions to an authority done right. Long story short, Notary Law says we cannot swear witnesses remotely, CPLR 3113(d) says we can. Well, I got an email from the Department of State, which as far as I know is the authority body for our Notary License, and they say we can remotely swear witnesses if it’s done properly under CPLR 3113(d).
Penal Law 210.30: A person is not allowed to say haha you got the oath wrong so I don’t have to tell the truth. Irregularities are no defense to perjury.
New York Wiretapping: It is a one-party consent state so audio is generally allowed. That said, if you leave the room while the audio is on then you’re not really a party and it could theoretically cause you problems. For recording in judicial proceedings see court rules 131 below.
Errors of transcriber waived: CPLR 3116(e) basically says errors are waived unless a motion is made in a reasonable amount of time. This is for all reporters and companies who have ever faced the lawyer who has a deposition and a year later complains about some deficiency or error with the transcript. Errors waived! If you’re ever sued for error or omission, this should be a serious line of defense.
CPLR 3116 generally: The CPLR 3116(b) provides that we’ve got to file the transcript and seal it and do all this BS. The bottom line is that in our usual stips in NY we waive this filing by the officer. Make life easy, make sure you have language waiving the filing of the transcript in your stips page if you use one.
CPLR 3115(b) and CPLR 3115(d) errors in oath/affirmation and disqualification: If you make an error in your oath or affirmation, it doesn’t make the whole thing null and void. An objection has to be made pretty much at the depo according to CPLR 3115(b). And a motion or objection has to be made in a reasonable amount of time from the point where, with due diligence, they would’ve learned you should be disqualified from giving an oath. Note that this doesn’t necessarily give you a free pass to shirk your responsibilities. In 1910, Bookman v City of New York 200 N.Y. 53 (N.Y. 1910) the court talked a bit about how it was important to give the oath in a lawful manner.
No speaking objections: The Uniform Rules Part 221 were revised some time ago to make depositions much more seamless. Basically they don’t get to have speaking objections except for when objections which would be waived if not interposed. It doesn’t matter much for you, except your usual stips page probably has something about it.
Redaction of Confidential Personal Information: Often in NY, freelancers feel obligated or become worried about redacting Confidential Personal Information. While it is true that we are often asked to and lawyers often stipulate that certain things should be redacted or truncated, it is not your direct legal responsibility. It is the responsibility of the filer of the document. If that fails, the court itself may redact information sua sponte.
You must be paid: General Business Law 399-cc basically says when an attorney of record orders a stenographic record be made, they have to pay for it. So this is for all my contemporaries who have been threatened with nonpayment over the years. They must pay you.
Civil Rights Law 52 – Witnesses being made to testify by subpoena may have a right not to have their testimony taped or broadcasted.
Part 108 Rules of the Chief Administrative Judge: This talks about rates and payment for official court reporters in NYS. Admittedly, not important for freelancers, but good food for thought with regard to discussions of pay and what people are paid for similar work.
Antitrust Law: A very brief summary of this is that in the United States competitors cannot collude to set prices. Price fixing among competitors upwards or downwards is illegal and considered anticompetitive. What this means is we cannot come together and say the rate should be 4.00 a page or don’t work for XYZ Agency unless they pay 5.00 a page because we as freelancers are considered competitors and that could be considered an agreement to set rates. This is also why our trade associations steer clear of rates discussions because the entire organization can be sunk by an antitrust suit.
No depositions on Sunday: The Notary Law packet, which is a bunch of laws thrown into a packet, quietly mentions towards the back that depositions may not be taken on Sunday. When I asked the Department of State they basically explained that Section 5 of the judiciary law says a court shall not conduct business on Sunday. In 1964 the Attorney General of New York released Opinion 103, which interpreted this to mean depositions couldn’t be held on Sunday. Unfortunately, I haven’t been able to find a good website link, as the opinions indexed only seem to go back to 1995. I originally became interested in this topic because the New York Notary Law packet mentioned no depositions on Sunday but offered no other guidance.
Sexual Harassment law. Everyone should know some of the basics I covered in my article on this, but more particularly, in 2018 the legislature amended the law. Freelancers are now supposed to be legally protected against sexual harassment.
Criminal Procedure Law Article 190 deals with grand jury proceedings and mandates that a certified stenographer is authorized to be present for grand jury proceedings. 190.25 deals with grand jury secrecy. Penal Law 215.70 makes unlawful disclosure an E felony. Penal Law 110 describes that an attempt to commit an E felony constitutes an A misdemeanor. See my article on recording of New York grand jury proceedings.
This amendment to Judiciary Law 390: The court had the power to make arrangements for deaf and hard of hearing jurors, lawyers, and litigants in New York but no mandate by law to do so. This mandated the court to use CART reporters or other means to assist people who need it. This passed and is law.
This proposed amendment to Judiciary Law 290: This amendment would have ensured the use of court reporters in New York City courts and is very important to us as a whole. It’s my belief that we should make this a legislative priority for reporters in New York, but as of writing has not passed, and to my knowledge, has not been put up for vote again. Notably it passed the NYS Senate but not the NYS Assembly.
Proposed amendment to Workers Comp Law 122: The workers comp board in NY unfortunately moved to tape recording and it was a serious blow to us in NYS. Tried to stop it by legislatively directing them to use stenographic court reporters. This was yes’d by the NYS Senate, yes’d by the NYS assembly, and vetoed by Governor Cuomo. If ever there’s a time to pass this again, I say we take it.
The civil service law on eligible lists. Often people ask why eligible lists only last four years. This is why.
Please note that there is quite a lot of law I did not bother to mention here, mostly dealing with court stenographers, and that they must furnish the transcript to parties upon payment (Judiciary Law 300). There are also appellate rules (CPLR 5525) that talk about our transcripts. Unremarkable, but Judiciary Law 330 talks about how typists authorized by the district attorney may prepare our transcripts, which is likely from a time when we didn’t have computer-assisted transcription. There’s also an oddly specific law dictating what stenographers in the eighth judicial district must do, Judiciary Law 309. As far as I know and understand, these judiciary laws only apply to people employed by the courts. If you want more stenographer law, try using keywords in this law crawler program. Including all of it here would not really serve a purpose.
Know more New York law that should be here? Let me know. On that note, no federal laws have been posted but keep an eye out in the future for an FRCP (Federal Rules of Civil Procedure) post.
Case law that supports stenographic reporters was brought to my attention. See People v Smith NY3d 2016 NY Slip Op 4973. Defendant complained of inadequate transcripts and court recordings, but appeal was sent back down due to failure to file an affidavit of errors.
A reader asked about TVB transcription rules. As of yet, the only thing I’m aware of here that might potentially relate to stenographers is 15 CRR-NY 155.3 (c).
Unsworn depositions, particularly on the federal side, can open up reporters to liability. See Dineen Squillante’s post on this. Looking forward to its publication in Vermont!