Archive for August, 2012

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

Thursday, 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.