Advisory Opinion 32

Preparation of deposition summaries (1997)

Statement of facts

An affiliated state court reporters association seeks guidance from the Committee on Professional Ethics as to whether it is appropriate under the Code of Professional Ethics for freelance reporters to prepare deposition summaries of the depositions they personally report. A related question involves whether a reporting firm, of which the taking reporter is an employee or independent contractor, may furnish such deposition summaries as a part of its regular business practices.

Discussion

This advisory opinion deals only with the type of summary whereby the neutral, unbiased reporter and keeper of the record prepares an "objective" summarization of a deposition which he or she personally reported. The word "summary" implies a compendium, an abbreviated version, or an abstract of what took place. Therefore, a summary would necessarily include the reporter's thoughts and interpretation of what was actually said by the witness while under oath.

Without question, the reporter's primary responsibility is to furnish a verbatim transcript of the deposition to all parties to the proceeding and to do so in a fair, impartial and unbiased way. Provision No. 1 of the Code requires, in pertinent part, that the reporter be fair and impartial to each participant in all aspects of reported proceedings. The Committee believes it would be difficult, if not impossible, for the taking reporter to summarize a witness' testimony which the reporter has reported in a fair, impartial and unbiased way.

The Committee further believes that the taking reporter who prepares such a summary is in an untenable position. This practice has the potential to create a direct conflict of interest since, by providing such summary, the taking reporter is intentionally placing himself or herself in a position of being a factual witness of what occurred at the deposition. Provision No. 2 of the Code requires the reporter to be alert to conflicts of interest. Provision No. 3 mandates the reporter to guard against not only the fact but also the appearance of impropriety. At the very least, the taking reporter's practice of providing deposition summaries creates the impression of bias and impropriety on the part of such reporter and, therefore, contravenes Provision Nos. 2 and 3 of the Code. The Committee further notes that this proscription on the provision of deposition summaries by the taking reporter also applies to the provision of similar summaries of any other proceeding or part of a proceeding reported by such reporter.

The second question is whether it would be appropriate for an individual who may be employed by, or under contract to, the same reporting firm as the taking reporter, to furnish this same type of deposition summary. The Committee determined that the appearance of impropriety created when the taking reporter prepares such a summary extends to any individual employed by, or under contract to, the same reporting firm as the taking reporter. Provision No. 3 of the Code mandates the reporter to guard against not only the fact but also the appearance of impropriety. The Committee believes that the perception and concern that the taking reporter may have contributed in some way in the preparation of the summary is too great in this situation and cannot be eliminated even when the summary is prepared by someone in the same reporting firm or under contract to the same reporting firm.

Conclusion

The Committee concludes that the reporter before whom a deposition is taken should not prepare a summary, as described in the Discussion Section above, of that deposition for any party to the proceeding. This proscription similarly applies to any other proceeding or part of a proceeding reported by such reporter. To do so would violate Provision Nos. 1, 2 and 3 of the Code. The Committee further concludes that someone employed by, or under contract to, the same reporting firm as the taking reporter also may not provide such summaries because to do so constitutes a violation of Provision No. 3 of the Code.

 

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.