When you’re at a deposition and one lawyer is yelling “off the record” while opposing counsel is yelling “on the record,” what should you do? In many cases the attorney who hired the reporter will argue that it is his deposition, that he hired us, and therefore he would determine when to go on and off the record. The other attorney will disagree. But no matter how loud their instructions to you are — “go off,” “stay on” — don’t let them intimidate you.
NCRA’s COPE Advisory Opinion No. 6 emphatically states that the reporter should stay on the record until both sides agree to go off. As neutral parties, court reporters must not favor any side. As long as one party wishes to speak, you must keep writing to preserve their position despite objection from the other side. The same holds true regarding recording testimony: If one party wishes to ask questions of a witness, you must keep writing. If you are ever in doubt, keep writing. You cannot recreate what transpired, but you can sort it all out later after you have a minute to think. You need to safeguard the record for a judge to review at a later date.
There will be times during heated exchanges where an attorney might assume something is on the record or vice versa when the opposite is true. As a reporter, please be aware that there could be ramifications on your end if arguments arise about whether something was on or off the record. You do not want to be caught in the middle of a tangled mess, and you do not want to be accused of any action or inaction that could affect the outcome of a case.
In situations like these, you have to more forcibly take matters into your own hands. When both sides agree, you can announce “We are off the record” so as to take any guesswork out of the equation. You can even put your statement on the record in colloquy. This is exactly what one reporter recently did during a very contentious deposition after it was decided to take a break. Then as the lawyers were leaving the room, one lawyer called the other lawyer a “scumbag.” The aggrieved lawyer said, “That’s on the record!” Unfortunately for him, however, the remark was not recorded. The reporter’s proactive measure saved him from being put in a sticky position. There was no room for argument.
As a reporter, do not hesitate to take charge when situations like these occur. As an impartial guardian of the record, you must maintain its integrity. To protect yourself, it would be a prudent practice to announce when you are going off the record and on the record, especially when the parties are not getting along.
Check out NCRA’s COPE Advisory Opinion No. 6 on this matter. You may want to keep it handy for future reference in case an attorney questions your position on this issue.