Inclusion into the Transcript of Comments Picked up by Videotape but not Heard by Reporter
(2015)
Statement of facts
A reporter was reporting a proceeding that was also being videotaped. The attorneys and the deponent were wearing microphones as part of the videotaping. The deponent had private conversations with his attorney and others during the proceeding that were recorded by the microphones, but the reporter did not hear. The conversations were not included in the transcript. After viewing the video, one of the parties asks the reporter to include these conversations in the official transcript. If the reporter does so, would this be a violation of NCRA’s Code of Professional Ethics?
Discussion
Provision No. 1 of the Code requires, in pertinent part, that the reporter must be fair and impartial to each participant in all aspects of reported proceedings. Provision No. 2 of the Code cautions the reporter to avoid situations that may give rise to conflicts of interest. Provision No. 3 provides that the reporter must guard against not only the fact but also the appearance of impropriety.
The official transcript prepared by a reporter is the written record of what the reporter heard and reported at the proceeding. This is the fundamental aspect of the stenographic court reporter. A reporter should not include conversations unless they were actually heard and reported by the reporter. Under the facts presented, it would be a violation of the reporter’s duty to be impartial to include conversations that were private and/or subject to attorney-client privilege at the request of one party.
If all parties agree that these conversations should be included, the Committee believes that the reporter may do so, provided the transcript clearly shows that the conversation is an excerpt from a video and not originally reported by the reporter In addition, the reporter should get such agreement in writing. In the event that the reporter inadvertently omitted testimony that was intended to be on the record, the parties should follow procedures or customs of their state or local jurisdiction to correct the transcript.
Conclusion
The Committee on Professional Ethics believes that for a reporter to include in a transcript, at the request of one party, a conversation made during a proceeding that was captured by a videotape, but not independently heard by the reporter, violates Provision Nos. 1, 2 and 3 of the Code of Professional Ethics. If all parties agree that the conversation should be included, the Committee believes that the reporter may do so, provided the transcript clearly shows that the conversation is an excerpt from a video and not originally reported by the reporter.
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.