Do you have to disclose what you read back to an attorney on a break to the other side?

In 2010 I started a website forum called 'Read Back' which was geared for court reporting-related questions & answers. People asked questions, others answers. I added the ability to vote on the best answers as deemed by the other site users. It was a great site, full of info and a little bit of humor. Unfortunately, I took the site down in 2014 due to lack of technical support :( However, with over four years' worth of information stockpiled, I've decided to turn some of the best Q & As into blog posts.

Today's readback.org archive question comes from user KATMAS:

QUESTION

Do I have to disclose what I've read back to an attorney on a break to the other side?

I was at a deposition the other day.  On the lunch break, the side that hired me wanted me to find a portion of the transcript to read to him and his boss.  The other party could see through the window what we were doing.  Should I have told the other side what portions I read back?  It felt a little awkward.


After 1325 views and 12 responses, the Best Answer with 23 votes comes from DUNBARCSR

ANSWER: 

I think I'm a hardliner on this one.  I would make sure everyone was present and/or aware.  I do believe it's a potential problem.  I always put myself in the lawyer's shoes and ask myself if I would view the reporter's behavior as preferential.  So I extend the idea of neutrality in providing services (within the CA Code of Civil Procedure) to these gray-area requests - if simply for CYA purposes.  Yeesh, I really don't like the boss/partner coming in either.  Was the boss present in the proceeding?

I once had someone's paralegal sent in during a break to go through what I had just taken down and make notes.  I kindly said that I wasn't sure it was appropriate and that, at the very least, the other side would need the same opportunity.  They promptly left.

In the end, you know when they are looking for something to give them an advantage in their examination or case.  If they want to make sure an exhibit was marked on the record, that's one thing.  But what if they want the exact words the deponent said so they can hammer them after the break and the deponent's counsel didn't know where the blindside came from?  

I know client relationships are important, but we walk a thin line.  As was mentioned earlier, if counsel wants that advantage, they should order real-time.  That way, it's been noticed and everyone is aware of the service.  They can certainly order a rough as well.  If they don't want the service, they should go with their own trusty yellow notepad.

We do our job; they do theirs.  Always be professional, but this is a slippery slope for a variety of reasons.  I say don't get wrangled into doing their gig or getting called out by the other side.

I do all of this very apologetically, by the way!  Those classes at The Groundlings turned out to be helpful...


By DUNBARCSR


OTHER RESPONSES

I think it's okay, even though it's on a break.   The area of testimony may only pertain to the one atty's area/client/interest he's defending.   I wouldn't go out of my way to re-explain or clarify to another party what I read.   It's by no means a secret... right?   All were present, presumably, when the testimony was first recorded in the depo.  

I would feel awkward if the other side asked me what the first side wanted...they may try to infer the atty work product angles from the portion they reviewed.

I once had an atty on a short break go through several portions of her examination.   She wanted to be sure she got everything she needed to cover.   Right?   Well, I became a little annoyed at how much she wanted to cover... Scroll down, down.   Okay.   More.   Scroll down.   Needless to say, she didn't order a copy!

It's just a little annoying.   At some point the thought is rolling around in my head - Either order a rough or hook up to realtime.


By JEANESE

You should have asked that the other attorney be invited in, especially since he could see what was going on.  Certainly the attorney that was left out might question your neutrality otherwise.
By SARAH

I would feel awkward as well.  Because your duty is to be a neutral, third-party officer of the court.  However, given that the other party could see what you were doing through the window and it wasn't -- as it were -- behind closed doors, then there probably will not be a problem.

Still, in the future I'd recommend telling the asking attorney something to the effect of, I'd love to read that portion back, but let's do it with all counsel present so that I don't have to read it back twice.  This will hopefully send the message that you are going to do everything equally for all parties and not  give the appearance or hint of impropriety by providing some service just for them.


By TODD OLIVAS

I believe California does have a Code on this.  I think I learned that at a seminar.  That's why I always tell the asking attorney that I have to be impartial and invite the other attorneys to view or hear the readback. 
By JBERGMANCSR

I agree with all the above answers, reading back to one side might give the other side the IMPRESSION that you are playing favorites!  ask that the other atty be brought back -- OR

EVEN BETTER -- ask to do it after YOUR BREAK!

How many different ways can an atty rob a reporter of a well-deserved break?


By IAMWRDSMTH

I always just say that in order to be impartial, I need to invite the other attorney to see or hear the record as well.  That always seems to work.
By JBERGMANCSR

This is a tough one, I agree, with differing opinions on both sides.  I also agree that ordering a realtime connection takes us out of the controversy because they can search for whatever they want without anyone knowing what they're looking for.
By RACHEL

Good point. And in this scenario, apparently, the opposing counsel were able to see through the window.
By ABBACSR2B

I say there is no need to notify the other side that you are going to be giving a read-back.

That's the way I have done it and would recommend others to do it.

There are strong differing opinions on this question.  Each side believes their decision is the correct one.

So reporters have to agree to disagree on this issue. 

We need a court ruling to once and for all give us a ruling by the courts on this matter.  At this time even different judges may have differing viewpoints on the matter.

Bill


By BILL

I've also read on court reporter forums of lawyers fuming mad over another aspect of this issue when court reporters have divulged transcript excerpts to the other side.

The lawyers who are fuming mad at court reporters for divulging excerpts of transcripts to the opposing side have a very definite viewpoint that the court reporter is not being neutral when the reporter divulges transcript excerpts to the opposing side.

So there are definitely differing views on the neutrality of the court reporter.

Some lawyers consider the court reporter as favoring the other side when the court reporter divulges transcript excerpts to the other side.

Again a court ruling is needed on this issue since some lawyers consider the court reporter's actions in disclosing transcript excerpts to the other side as being unethical on the part of the court reporter.

Bill


By BILL

The attorney could obviously see what you were doing. The record isn't a secret. You were simply doing what was asked of you and clarifying the record for an attorney. There is nothing unethical about a read-back -- unless all attorneys were not present when it was stated in the first place.
By SALLYANNA

You could have perhaps motioned to the attorney looking in the window come on in or maybe said to that attorney later, If there's something you'd like to have read back, just ask.
By MARGE TEILHABER

that is my memory too, although I can't find anything about it. It came up recently.
By MONYEENLB

Monday, June 09, 2014

Author
Todd Olivas

Todd Olivas is a court reporter and entrepreneur.
He founded TO&A in 2003.


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