Chief Jefferson Circuit Judge Audra Eckerle recently announced that the Circuit Court was tendering proposed changes to the Jefferson County Local Rules. One particular rule, LR 1202, is designed to address the filing of deposition transcripts with the Court Clerk. Technically, paper copies are supposed to be filed. However, space limitations have discontinued the practice. As a result, either attorneys or court reporters currently maintain control of the original hardcopy until needed by the Court. As Louisville court reporters, we have always stayed apprised of changes in the Local Rules. The proposed changes have the potential to cause significant problems for Louisville attorneys.
The Proposed Rule Will Make Noticing Attorneys Store Paper Transcripts.
As can be seen from the plain language of the proposed rule, the attorney who notices a deposition will now be obligated to maintain and store the original hardcopy paper transcript of every deposition they schedule. For some attorneys, this could mean they are obligated to store tens of thousands of pages of deposition transcript every year. It is unlikely that many attorneys have the excess office space to securely store a literal library of deposition transcripts. It will also mean that attorneys who maintain a “paperless office” will have to rethink their approach to litigation. Moreover, many transcripts contain HIPAA-protected information which requires a higher level of handling and security.
Here is the proposed rule:
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 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. (Emphasis added).
What happens to an attorney who is unable to maintain the original? If it is lost in a flood or fire does that mean it is no longer available for use at trial? Will the lost deposition testimony be excluded? Is maintaining the original hardcopy an ethical obligation that could lead to sanctions for a failure? In addition, how long must the original hardcopy be kept? These are all issues that need to be addressed.
The Rule Will Shift Deposition Costs.
A technical reading of the text of the proposed rule would require attorneys who notice depositions to provide a copy of the deposition to all opposing parties. We do not think the Court meant for this to occur but it could be read into the rule. In the status quo, court reporters split the per page cost of depositions between the noticing attorney and the copy attorney. The noticing attorney generally pays about 75% while the copy attorney pays about 25% of the total cost. This creates an equitable cost structure that has survived for decades.
If Rule 1202 is read to require the noticing attorney to give a copy to all other attorneys then court reporters will lose 25% of their income. Obviously, court reporters are not simply all going to shut their doors and leave the profession. Instead, they will have to put the full 100% cost onto the noticing attorney. After the rule, the noticing attorney will pay at least $2.00 more for every page of transcript.
This can create a real inequity in terms of litigation costs for plaintiffs and defendants alike. For example, imagine if you are suing a nursing home. You will have to take the depositions of nurses, doctors, administrators, residents and other witnesses. Meanwhile, the defense may only need to depose your client. This places the entire burden of the case on the plaintiff in these types of cases while requiring the plaintiff to literally pay for the defense’s deposition transcripts. The same would be true of medical malpractice cases, discrimination cases and a host of other areas.
Now switch hats and imagine that you are defending a coal mine respirator company or doctors who used INFUSE bone grafts. You might face litigation from 100’s of claimants. As the defendant, you would potentially cover 100% of the cost of deposing all claimants under the new rule.
While completely unintentional, Rule 1202 could profoundly change the access available to the court system by certain litigants. It is possible that costs should be shifted. However, such a change should require a more comprehensive discussion rather than a sudden change resulting from the unforeseen consequences of an innocuous procedural rule.
A Simple Solution.
The problems with Rule 1202 can be easily corrected. First, it should be made clear that an attorney fulfills his or her duty of maintaining the hardcopy by receiving assurances that the court reporter will maintain the record. Court Reporters already have archiving systems in place to maintain these records in perpetuity. Second, the language pertaining to copies should be eliminated. Instead, the court should be able to order that the Original must be accessed and copied in the event that a discrepancy exists among copies. After all, that is the point of having an Original. This allows everyone access to the Original in the event of a dispute while maintaining an equitable distribution of deposition costs. Here is how we suggest wording the rule:
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. The noticing party may comply with this rule by receiving assurance from the court reporter (or court reporting company) who took the deposition that the court reporter (or court reporting company) will maintain a hardcopy of the deposition.
A hardcopy must be made available for copying and inspection upon order of the court.
Hardcopies must be maintained for at least one year after all appellate options have been exhausted in a case or the deadline for pursuing appeals has lapsed without any party pursuing an appeal.
As Louisville court reporters, we can adapt to any course chosen by the legal community. Our only concern is in ensuring that our clients are not caught off guard by the unforeseen consequences of well-intentioned rule.
Please call or email Eric Darnell, the Circuit Court Administrator, as soon as possible to voice your concerns.
Eric Darnell – [email protected] 502-595-4588
Kentuckiana Court Reporters
730 West Main Street, Louisville, KY 40202 | 710 East Main Street, Lexington, KY 40502