I had previously shared law for Stenographers in New York and my understanding of New York law as it pertains to remote swearing of witnesses. I wanted to bring out some information about the Federal Rules of Civil Procedure, which govern our federal depositions and activity there. The bulk of the Federal Rules have nothing to do with stenographers, but there are a number of Federal Rules that pertain specifically to our duties as stenographers and what they label as officers or deposition officers.
Rule 28. Rule 28 (a)(1)(A) lays out that a deposition may be taken before an officer authorized to administer oaths by federal law or by the place of examination within the United States. You should be very familiar with your state law as to who can administer oaths, or ask to be qualified by stipulation pursuant to any of the rules we are about to get into.
Rule 30. Rule 30 (b)(5), very similar to our CPLR in New York, has language that “unless stipulated by the parties…” long story short is that that “unless” language opens up the opportunity for parties to stipulate to things like remote swearing, or alter the procedure. Once again, one of the few times in law that attorneys can stipulate away the law. Please know a reader wrote to me on 1/16/20 and stated their interpretation was not that the attorneys can stipulate away notary law and have the notary swear the witness, but rather proceed as if the witness is under oath and have them read and sign as such. As of yet, I have no case law on this issue.
Do note there there is a list of stuff you as the officer is supposed to do here, like placing your name and address on the record, the date, time, place of the deposition, deponent’s name, your administration of the oath, and the identity of all persons present. At the end, you must state that the deposition is complete and set out any stipulations of the attorneys.
Rule 30 (b)(3) states the method of recording the deposition must be in the deposition notice. Do yourself a favor and educate attorneys to ensure their deposition notice says stenographically recorded.
Rule 30 (b)(4) explicitly allows remote proceedings, and with the language in Rule 30 (b) (5), and in the absence of contrary case law, one may draw an inference that so long as you are not violating your state law, it is also permissible to swear a witness while not in their presence.
Rule 30 (c) (2). Again, like our CPLR in New York, objections need to be made at the time of the examination on the record. If they have objections to the way you’re swearing or what’s occurring, they need to make them then and there. Long story short, they can’t really come back 9 months later and say you did something wrong — though they may try.
Rule 30 (e) tells us that upon request by a deponent or party before the deposition is completed, the deponent must be allowed to review the transcript. This is what we call read and sign.
Rule 30 (f) explains how the officer is to send the deposition to the ordering attorney. Common sense stuff like identifying it and sealing the envelope. It then largely becomes the responsibility of the attorney.
Rule 30 (f)(3) says unless otherwise stipulated, you have to retain your stenographic notes and provide a transcript upon payment of reasonable fees.
Rule 32. Rule 32 (d)(2) makes it resoundingly clear that any objection to your qualifications as an officer at the deposition must be challenged promptly, either at the deposition or soon thereafter. Rule 32 (d)(3) again makes it clear that objections that are not made pretty much at the time of the deposition are waived.
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!