Can a Reporter List a Transcript for Sale on a Website?

August 2nd, 2012

Related to the issue of whether a Reporter may sell a transcript to a third party, is the issue of whether the Reporter may list a transcript for sale on the Internet. The short answer is “Yes,” as long as certain procedures are followed. Here is the text of the National Court Reporter Association’s policy statement regarding transcript repositories:

“The National Court Reporters Association (NCRA) is well aware of the growing number of online transcript repositories. These Internet sites market themselves as a way for attorneys, and in fact the general public, to obtain and read transcripts from proceedings other than those with which the attorney is involved. Many of these online repositories offer attorneys access to the transcripts for free or at a reduced rate in exchange for attorneys submitting to the repository copies of transcripts the attorneys have purchased in the course of their practice.

These repositories are distinct from Web sites operated by state and federal courts through which parties in interest or the public can access copies of court documents.

The court-operated Web sites only contain public documents, in that they have been filed with a court, and therefore the parties have no expectation of privacy.

Furthermore, in most instances the courts have redacted private and confidential information from these documents.

NCRA is concerned about these private online repositories for several reasons. First, NCRA members are prohibited from selling copies of transcripts that are not public record (e.g., deposition transcripts that have not been filed with a court) to persons unrelated to the proceeding without first obtaining permission from the parties and the deponent. Reporters are entrusted by the parties to keep information secure and cannot violate that ethical duty without explicit permission to do so. The parties and witnesses have the expectation that the information will be kept secure by the reporter. Ignoring such a safeguard places private information at risk, potentially allowing anyone to make use of the data for inappropriate and/or illegal uses via these repositories.

Additionally, when a transcript contains private information, such as social security numbers and names of minor children, many courts have implemented a procedure whereby the parties instruct the reporter before the transcript is filed in court to redact that private information. If an attorney submits a transcript to a transcript repository that hasn’t gone through that redacting procedure, there is risk of great harm to the involved parties with the release of that personal and confidential information.

Court reporters have long been vexed by the issue of attorneys sharing transcript copies with fellow attorneys on the same case, as reporters rely on transcript copy sales as part of their income. Moreover, as federal and most state laws identify, reporters have the right to be fairly compensated for production and distribution of the transcript.

However, the issue of compensation pales in comparison to the dangers associated with the unauthorized and unregulated posting of transcripts containing private and confidential information to the Internet via online repositories.

For these reasons, NCRA believes that such distribution via online repositories should be prohibited unless the following guarantees are offered:

1. Private and confidential information as identified by current federal guidelines  has been redacted from the transcript.

2. Only those transcripts that have been made part of the public record, either through filing with a court or through the permission of the parties and the deponents, are posted online.

3. The posting party has confirmed that such a practice does not violate local rules and regulations governing the terms and restrictions on the distribution of transcripts.”

Summary — if a Reporter follows the 3 rules contained in this policy — and also complies with local rules on the subject — a transcript (including an expert witness transcript, of course) may be listed for sale on a website.

 

Can A Court Reporter Sell a Transcript to Someone Other than the Parties?

July 31st, 2012

Court Reporters who first learn about CrossExam.com often ask whether it is legal for them to sell expert witness transcripts to buyers other than the original parties to the lawsuit.  National Association of Court Reporters Advisory Opinion 9 (“Selling the transcript to third parties/When is a deposition a public record”, Originally written, 1989; Revised, 1997) provides the answer to this question.

“Although rules vary from state to state, in general, a deposition transcript becomes a public document when it is filed with the court and becomes a part of the record in an official proceeding. Under the laws of most states, therefore, a deposition that has not been filed as part of an official proceeding is not a public document.

Provision No. 4 of the Code of Professional Ethics provides that a reporter has an obligation to preserve the confidentiality of information entrusted to the reporter by the parties. It is the Committee’s opinion that the parties have the right to expect that any information entrusted to the reporter will be kept confidential until the parties themselves decide to make the deposition a public document. Unless a deposition transcript has been made a part of the public record, the reporter must obtain the permission of all parties and the deponent (not just the hiring party) before selling or otherwise releasing the transcript to any third party.

Once a deposition transcript has been made a part of the public record, subject to any protective order or state or local rule to the contrary, the reporter may sell the transcript to third parties without the consent of the parties or the deponent.

Conclusion

It is the Committee’s opinion that the selling of deposition transcripts that have not been made part of the public record to other than the litigants and the deponent without the agreement of the litigants and the deponent constitutes a violation of Provision No. 4 of the Code of Professional Ethics.

Once a deposition transcript has been made a part of the public record, subject to any protective order or state or local rule to the contrary, the reporter may sell the transcript to third parties without the consent of the parties or the deponent.”

Summary — Yes, a reporter may sell a transcript to someone other than the parties if (1) the transcript has been been made a public record, or (2) all of the litigants and the deponent consent.

 

Straight from the Horse’s Mouth

November 28th, 2011

When researching an expert, there is no better information than the expert’s own words, taken down during a deposition or trial.
While it is good to also have access to information concerning an expert’s mention in news articles, the expert’s CV and perhaps the opinions of lawyers who have used that expert witness, there is no substitute for testimony.
CrossExam.com allows visitors to get to the heart of the matter by accessing the actual testimony of expert witnesses … period.
Simply enter all or part of a name or any relevant word at all, and within seconds results are available for review.
Purchasing takes only a moment, and the transcript is available to you for download, immediately.

Discrediting an Expert

July 25th, 2011

What is the most effective method of cross-examining your opponent’s expert witness? There are two basic approaches: (1) Supportive Cross-Examination (where you attempt to elicit helpful  concessions from the opposing expert), and (2) Discrediting Cross-Examination (in which the expert’s credibility is attacked).

Consider some or all of these factors as part of a Discrediting Cross-Examination:

1. Reliance on facts that are not credible

2. Lack of thoroughness in gathering and reviewing information

3. Failure to prevent contamination of test samples

4. Insufficient testing methodology

5. Insufficient expertise (assumes expert has already been qualified)

6. Bias, e.g., fees

7. Differing opinions among qualified experts

8. Prior inconsistent statements in other like cases

9. Learned treatises to impeach with different approaches and conclusions

With respect to point 8, an expert’s prior trial or deposition testimony may be obtained through CrossExam.com.

Tailor-Made Search for the Right Expert

June 25th, 2011

There is no shortage of commercial services that offer to locate the “right” expert for your case. While these types of services (which typically charge a fee to either you or your expert) can be a valuable resource, you should consider other ways to locate the right expert for your case. Consider these options the next time you need to find an expert:

* Reported Cases – often this can lead to an expert with the most relevant experience for your particular case

* Experts Presenting at Seminars – this is a great way to “audition” your potential expert, since you can see how your expert may “perform,” and you can also ask questions

* Review Prior Testimony on CrossExam.com – reading a potential expert’s prior testimony in similar cases is critical

While all of these methods require a little more work on your part, they can help you end up with the right expert for your case.

Basic Objections to Expert Testimony

June 19th, 2011

Here are the most common objections to expert testimony that every lawyer should know and understand.

• The particular field is not a proper subject of expert testimony;
• The purported expert testimony is not relevant in that it will not make a fact of consequence to this lawsuit any more or less probable than it would be without the testimony;
• There is no adequate showing that the expert testimony is the product of reliable facts or data (or is the product of reliable principles and methods);
• The is no adequate showing that the witness has applied reliable principles and methods of the field of expertise to the facts of this case;
• The purported expert testimony is unfairly prejudicial and its probative value is substantially outweighed by the danger that this unfair prejudice will unduly influence the trier of fact;
• There are insufficient underlying facts or data upon which the expert could legitimately base an opinion;
• The expert opinion based his opinion on inadmissible facts or data, e.g., inadmissible hearsay, that is not of a type reasonably relied upon by experts in the particular field in forming opinions;
• Expert testimony concerning the otherwise inadmissible facts or data upon which the expert bases his opinion should not be allowed in evidence before the jury because the danger that the inadmissible facts or data will be used for a purpose other than explanation or support for the expert’s opinion outweighs their value as explanation and support.
• The purported expert is not qualified by knowledge, skill, experience, training, or education in the particular field of science, technical, or other specialized knowledge;
• There is insufficient proof that the technique employed by the expert qualifies as reliable scientific, technical or other specialized evidence; and
• The testimony will not assist the trier of fact to understand the evidence or to determine a fact in issue.

Future posts will address each of these objections in more detail.

Using the Non-Testifying Expert

June 7th, 2011

Most of us think that experts are mainly utilized for live testimony at trial or deposition. However, non-testifying (or consultative) experts may also be employed in a case for a variety of purposes.

Expert Selection – Using an expert to vet a potential expert you are considering hiring is an excellent practice, assuming that the first expert you hire is impartial (i.e., not influenced by his or her potential future hiring).

Review of Publications – While most attorneys are generally familiar with the titles of prominent technical publications, an expert can tell whether a particular publication is “real” as well as its relative professional significance.

Review of Professional Credentials – Similar to the review publications listed on a particular opposing expert’s CV, a hired expert can “translate” for the attorney the meaning of other resume and/or CV items (e.g., the strength of a particular academic program, the professional perception of a particular conference the expert claims to have attended).

Role Playing — This is particularly useful, if the expert you hire has previously testified as an expert against the expert your opponent plans to use at trial.
Aside from the above uses of an expert, under what circumstances might one use a non-testifying expert? What if your expert simply is not comfortable with the pressures associated with testifying? What if your expert’s rates for live testimony (as opposed to consultation) are cost prohibitive? What if your expert’s availability prevents the expert from being available for trial? In any of these circumstances, use of a consultative expert may be the solution.