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Are Jefferson County’s Deposition Transcripts a Public Record?

With the days to comment on the Proposed Changes to Jefferson County’s Local Practice Rules quickly coming to a close, I wanted to go back and revisit the proposals and think them through again. I’d already emailed Eric Darnell, Circuit Court Administrator, with my thoughts, but while rereading the Proposed Changes I came away with a question that I think needs to be answered:

Are Jefferson County’s deposition transcripts a public record?

Please consider the following Proposed Changes to Jefferson County’s Local Practice Rules, and particularly what I’ve highlighted:

“CR 30.06 notwithstanding, only the cd/DVD/disc/videotape of a deposition shall be filed with the Clerk. The original hardcopy of the deposition shall be maintained by the party noticing the deposition and shall be made available to any party for inspection and/or copying. Excerpts of relevant portions of any deposition may be offered in support of and attached to any pleading with the Court.”

If you’ve ever looked at the online case docket sheet, you know that you cannot determine whose deposition has been noticed or taken. You cannot determine if a deposition has taken place or been transcribed. You cannot determine who the noticing attorney is, and you cannot determine before whom the deposition was taken (court reporter). Therefore, you cannot easily access what I thought was a public record, the original transcript of a deposition. 

The proposed rules state “The original hard copy of the deposition shall be maintained by the party noticing the deposition.” What if a deposition was taken and not transcribed? There is no way to tell if there is a transcript and if there is no transcript, it would be terribly difficult to determine who the court reporter was so you could call and ask, “Hey, was this deposition transcribed?” What if the transcript is lost or misplaced while being copied or reviewed by the parties? Does that mean there was nothing transcribed?

Are Jefferson County’s deposition transcripts a public record?

In addition to the proposals being problematic for the public, I question the practicality of the wording “shall be made available to any party for inspection and/or copying.”

What is the Court’s definition of “party”?

Is the original transcript a public record? If so, by this language, is the noticing attorney obligated to give or sell the public copies of the original transcript and/or monitor their review of the original transcript and exhibits? If the noticing attorney is obligated to do the above, what is a reasonable charge for preparing an exact copy of the original transcript, and/or what is a reasonable charge for monitoring the handling and review of the original transcript, and what is a reasonable time to produce the original transcript for review and/or copying?

What procedures are required to be followed to protect the integrity of the original transcript and exhibits?

As a court reporter for many years in Jefferson County, KY, I suggest the Court maintain the status quo until all issues concerning the proposed changes are resolved, that is, the noticing attorney maintaining the sealed original transcript until such time as the court deems it necessary to be opened, thereby maintaining its integrity and reducing the chance of mishap.

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Court Proposes Changes to Local Rules

I recently received an email “Message from Chief Jefferson Circuit Court Judge Audra J. Eckerle – In lieu of weekly e-brief.”  The email states, “THIS MESSAGE IS BEING SENT ON BEHALF OF CHIEF JEFFERSON CIRCUIT COURT JUDGE AUDRA J. ECKERLE:”

The message begins “The Jefferson Rules of Practice (known informally as the “Local Rules”) have not been amended since 2006.”  The message goes on to say, “Pursuant to SCR 1.040(3)(a), we tender to you now the proposed amendments that the Circuit Court Term has voted to approve.”  See the Proposed Changes

As a member of the Kentucky Court Reporters Association, as well as the Louisville Bar Association, I have some concerns with the proposed changes to Jefferson County’s Local Practice Rules, in particular the section underlined below: 

1202 Filing Depositions with the Court

“CR 30.06 notwithstanding, only the cd/DVD/disc/videotape of the deposition shall be filed with the Clerk. The original hard copy of the deposition shall be maintained by the party noticing the deposition and shall be made available to any party for inspection and/or copying. Excerpts of relevant portions of any deposition may be offered in support of and attached to any pleading with the Court.”

I believe this proposed change places the burden on the taking attorney to maintain, safeguard, and reproduce court records.  For example, the taking attorney may have the responsibility of providing a time and place for any and all parties to handle and inspect the original transcript, quite possibly providing someone to supervise the original’s handling, such as was the case when the court clerks kept watch over those viewing files as they sat in a designated area observable to the clerks.   Some attorneys may not have the copy power to reproduce large-volume transcripts, audio or video recordings, or color copies, adding further complication to reproducing the original.

In addition, I believe opposing counsel will increasingly expect the taking attorney to produce the original for inspection and/or copying at no charge, creating a decrease in revenue to the taxpaying court reporter caused by the loss of a transcript copy sale, which the court reporter created originally.  If court reporters lose that transcript copy sale, our businesses would suffer a significant financial loss.  It would be difficult to continue to pay office rent and expenses, salaries, insurance, and taxes without adding a steep increase to the cost of the original transcript, further burdening the taking attorney with this additional charge.

As I see it, under the proposed change as stated in CR 30.06, a huge and unfair burden would be placed on the taking attorney, that being: 

  1. The increased cost of an original transcript charged by the court reporter to recoup the cost of the lost copy sales. 
  2. Having to furnish a supervised place and time for parties to view the original transcript and exhibits.
  3. Not all attorneys have the setup to allow all parties to come in and view DVDs.

I believe the cost of an attorney-copied original transcript would be more costly than if copied and sold by the court reporter that originally created it because of comment 1 above. The proposed change does not address what a fair charge is for such copy work done by the taking attorney.  Court Reporter’s rates are limited to what the market will bear. 

I propose that the Court continue to allow court reporters to seal the original transcripts until such time as they are deemed necessarily opened by the Court.  If opposing counsel would like a copy of the transcript, I hope we can maintain the status quo, whereby the court reporter is called and asked by counsel to produce a copy for them at a set rate.   By providing a sealed original to the taking attorney, it protects the integrity of the original transcript and exhibits, while not taking up space at the courthouse.

Lastly, I see a conflict in the language between 1201, Section 4 and 1202 as to who maintains the original video.  I propose the video be maintained by the taking attorney, as is the current practice, and filed with the Court as the Court deems necessary.

We at Taylor Court Reporting Kentucky encourage all Kentucky court reporters, Louisville court reporters, Kentucky legal videographersLouisville legal videographers, and attorneys to review the proposed changes and express opinions with Eric Darnell, Circuit Court Administrator, at ericdarnell@kycourts.net or 595-4588 by August 30, 2013.

Linda L. Taylor
Certified Court Reporter – KY