By Linda Larson
Since the quality of audio on teleconferencing and videoconferencing has improved over the years, and to save money and time, more and more attorneys are choosing to take depositions by phone or videoconference. Often the court reporter is put on the spot when arriving at a deposition and the attorneys are expecting the oath to be administered over the telephone. There are two different scenarios in this opinion.
The first scenario is one where the court reporter arrives at a deposition to find that the witness will be appearing by telephone. There is a notary with the witness who will be administering the oath. What are the obligations of the court reporter under the Code of Professional Ethics?
A reporter is always bound by federal, state, or local laws. If there are no laws, rules, or regulations regulating the above scenario, then the COPE Committee believes there is no ethical violation for a reporter who is not in the presence of a witness appearing over the telephone to report the deposition. In addition to rules governing court reporters, the reporter should look to his or her notary rules or other applicable laws to determine if he or she is permitted to swear in a witness over the telephone. If not, then the witness should be sworn in by a duly authorized oath giver in the presence of the witness. The court reporter must prepare a certificate page that conforms to the circumstances under which the oath was administered. The reporter should obtain from the oath giver proper documentation of administration of oath for attachment to the transcript.
In the second scenario, there is no authorized oath giver in the presence of the witness who is over the telephone. The attorneys wish to waive the notarial requirement and stipulate that the oath given by the reporter, not in the presence of the witness, has the same force and effect as if administered in the presence of the witness. What are the obligations of the court reporter under the Code of Professional Ethics?
Again, a court reporter is always bound by federal, state, or local laws. Attorneys cannot stipulate to breaking laws. It is a violation of provision number 9 of the Code of Professional Ethics, which is maintain the integrity of the profession, to administer the oath over the telephone if there is a law stating that the witness must be with the court reporter or oath giver when administering the oath.
In conclusion, unless notary or other laws state otherwise, the witness should be in the same room with the court reporter so the court reporter can legally administer the oath. If this is not possible, then another notary should be with the witness; the notary will administer the oath to the witness and provide documentation to the court reporter to attach to the transcript stating that the oath was legally given by the notary.
Linda Larson, RPR, CRI, is a member of the NCRA COPE Committee and a freelance court reporter and owner of Premier Reporting, LLC, with offices in Carlisle and Harrisburg, Pa. Linda can be reached at firstname.lastname@example.org.