Court reporters have the obligation to stay on the record unless all parties agree otherwise, or until a judge orders the end of the deposition, regardless of who the hiring attorney is. The following is a real-world example:
– Extremely contentious divorce case.
– Husband’s attorney hired the court reporter.
– During Wife’s deposition Husband’s counsel steps out of the conference
– Wife makes a gesture towards Husband and it is NOT received favorably.
– Husband and Wife begin shouting.
– Husband’s attorney returns to the conference room.
– Wife’s attorney announces that he and his client will not continue with the
– Husband’s attorney instructs the court reporter to go off the record so that he
can find out what happened while he was away.
– Wife’s attorney refuses to go off the record, wanting to make a statement
regarding the situation.
– Husband’s attorney again instructs the court reporter to go off the record.
– The court reporter continues writing, trying to capture the cross-talk while
explaining that she needs an agreement between counsel to go off the record.
– Frustrations soar and the hiring attorney asks “How can I get you to stop
– Wife and her attorney leave the building.
While packing up her equipment, the court reporter explained her obligation to stay on the record until an agreement was reached. Husband’s attorney was not happy with the explanation. Although Husband’s attorney was a loyal client of the court reporter and perhaps thought that since he was the hiring attorney the court reporter should have gone off the record when he requested, the court reporter, being fair and impartial, was correct to stay on the record and take down all comments made. The court reporter’s decision was in keeping with the National Association of Court Reporters Advisory Opinion No. 42.
So, when we stay on the record after an attorney leaves, it is because we are ethically required to do so. When a conversation begins as “on the record,” then the court reporter must keep it on the record unless all parties agree to take it off the record.