Providing attorney names/addresses of certain deposition transcripts to third parties
(1995) (revised March 2014)
Statement of facts
A freelance reporter requested the Committee on Professional Ethics for its opinion regarding the permissibility under the Code of Professional Ethics of furnishing names and addresses of the attorneys in certain deposition transcripts to another attorney so that he may contact these other attorneys and obtain copies of the deposition transcripts directly from them. A reporting firm has taken the deposition of a local doctor eleven times within the past year in completely unrelated matters. An attorney in the most recent case requests copies of the doctor's depositions in the other ten cases from the reporting firm. The firm instructs the attorney that depositions are private documents and that it cannot furnish such depositions to the attorney without the prior consent of the parties involved. The firm declines to contact all parties in the other cases to get permission. The attorney then requests the reporting firm to provide him with the names and addresses of the attorneys in those other ten cases so that he can contact these other attorneys and obtain copies of the depositions directly from them. May the reporting firm furnish the names and addresses of these attorneys to the requesting attorney?
Discussion
It is the opinion of the Committee that the reporting firm may not provide to a nonparty the transcripts or any information contained therein, including the names and addresses of the attorneys in the other ten depositions without first seeking and securing the permission of the deponent and all parties present at the deposition. To do so would violate the confidentiality and the security of information entrusted to the reporting firm by parties to the ten other actions. Provision No. 4 of the Code specifically requires the reporter to preserve the confidentiality and ensure the security of information, oral or written, entrusted to the reporter by any of the parties in a proceeding. In Public Advisory Opinion No. 9 (1989), the Committee concluded that, based upon the Federal Rules of Civil Procedure and similar rules adopted by most state and local jurisdictions, depositions are generally not public documents, so that the reporter may make available copies of the deposition transcripts only to the parties to the action and the deponent, absent their permission to do otherwise.
The reporter's obligation to preserve confidentiality and ensure the security of information extends not only to the whole deposition transcript, but also to parts of such transcript. Protectable information in the deposition transcript includes the names and addresses of the attorneys involved in the ten other depositions. Consequently, the reporter is prohibited from disclosing such information to a nonparty without obtaining the prior permission of the deponent and all the parties in attendance at the depositions in each of the cases.
The Committee also believes that upon such a request from a nonparty, a reporting firm is obligated to seek the permission of the deponent and all parties in attendance at the depositions. To decline to do so is prejudicial to the person making the request.
Conclusion
The Committee on Professional Ethics believes that it is a violation of Provision Nos. 4 and 9 of the Code for the reporting firm to provide the transcripts and/or the names and addresses of the attorneys appearing in the ten other depositions without the prior consent of the deponent and all parties in attendance at the depositions. (See PAO 9 for related information.)
The Committee also believes that upon such a request from a nonparty, a reporting firm is obligated to seek the permission of the deponent and all parties in attendance at the depositions.
THIS PUBLIC ADVISORY OPINION REFLECTS THE STATUS OF THE LAW IN MOST JURISDICTIONS. MEMBERS ARE REQUIRED TO CONFORM TO THE ACCEPTED PRACTICES SET FORTH IN THIS PUBLIC ADVISORY OPINION TO THE EXTENT THAT SUCH PRACTICES ARE CONSISTENT WITH THEIR OWN APPLICABLE STATE AND LOCAL LAWS, RULES AND REGULATIONS.