Dear Depo Diplomat:
I have a court reporting question. One of my clients is being approached by a new party defendant in a case and wants copies of all the depos from him instead of ordering them from the reporter. He is demanding that my client turn over copies to him, and my client asked me if there is any rule that he has to provide them to him. I told him that there was nothing in the Code to stop him from copying them and being a nice guy to them, but they couldn’t force him to make copies for them.
Do you have any thoughts or input? How did they stop it in the OJ case? I know that was an issue there.
These attorneys for some new parties that have just been added to this litigation are taking the position that they could make a discovery demand (“produce all copies of all deposition transcripts”) and that, under the discovery rules, my attorney client would be obligated to comply and could only charge for his own per-page copying charges. According to my client, all of that is true, so we’re wondering if there is some written policy, statute, rule, etc., which would excuse him from having to comply with that kind of a discovery demand.
I know this is an issue for court reporters all over the state in this case. At least my client is being kind enough to make an effort not to let this happen by asking for my input.
Thanks so much.
The only law that absolutely prohibits the sharing of copies or one attorney providing to another attorney any transcript copy exists in the Government Code, Section 69954, and I’ll paste that here for you. This prohibition also would have applied in the OJ case, by the way.
(d) Any court, party, or person who has purchased a transcript may, without paying a further fee to the reporter, reproduce a copy or portion thereof as an exhibit pursuant to court order or rule, or for internal use, but shall not otherwise provide or sell a copy or copies to any other party or person.
Now since this language is contained in the Government Code, it applies to official court transcripts and not to depositions, per se. However, one of our clients a few years ago was faced with the same situation — a new party coming into the case first asked and then demanded copies from her of all previously taken depos — and she refused, insisted that the attorney come to us to buy their copies, and she referred to this very language as the law that prohibited her from providing the copies that he wanted. They disagreed about this, and the attorney trying to get the copies even called me and asked me about this language, and I had to tell him honestly that I didn’t believe this language could be applied to depo transcripts. But they fought about this all the way into court, and amazingly our client prevailed; the court concurred. Now I still don’t know how she persuaded the court on this, but the attorney needing these copies ultimately ordered them from us. So ever since that experience, I’ve encouraged attorneys who are facing this same situation and are looking for some statutory language for guidance to try using this Section 69954 language, see if it will work. Of course, it doesn’t specifically exclude depo transcripts or only mention court transcripts, but all the language preceding this section in the Government Code is referring strictly to official transcripts.
What I am wondering about, though, is if discovery demands have always been broad enough to include all the work previously done and paid for by the original parties involved — depo transcripts being part of that work — then why haven’t parties coming into the case later always been able to get existing transcripts from those original attorneys? Certainly we all have had law firms come to us in the middle of a case and order copies, so why would they go to that expense if those copies were always available to them in this fashion? And come to think of it, if attorneys representing later-named parties could obtain depo transcripts by submitting a discovery demand to the original attorneys involved, why couldn’t any party at any time try the same approach in order to get the depos without paying for them? I admit to knowing very little about this, what a discovery demand is supposed to encompass, but either it isn’t meant to include previous depos and this attorney is overreaching, or a whole lot of attorneys over the years have believed they were only allowed to get transcript copies directly from the reporter. Or perhaps they’re just getting a lot tighter with their money these days.
I just consulted my “in-house” counsel here, and his experience is that upon receiving such a demand, he’d be willing to comply with most of the discovery documents, but he says he certainly isn’t required to produce to another counsel depo transcripts that he has paid good money for, and there’s no reason he should be expected to. The transcripts are readily available for the other attorney to order from the reporter, and he’d refer this requesting attorney to the reporter to purchase his own copies. There’s no reason why he should bear that expense and then share it, at copying costs only, with another counsel. Each party’s counsel has access to copies from the source, the reporter, and that’s where they should go for them. And he doesn’t believe that there is any rule within the CCP that states that a discovery demand would require he turn over depo copies to this other attorney. Now they might have to fight about this, even end up in court over it, but he’d be willing to do so — and not just because he’s married to a reporter — but is pretty convinced that the judge would side with him and instruct the other counsel to go get his copies from the reporter, like everyone else in the case had. And maybe that’s really the reason that our client prevailed in that other situation, not because the judge agreed with her that the above Government Code language did apply here, but because he believed that one party shouldn’t have to share with another party, at essentially no cost, what they’ve paid handsomely for.
Maybe if your client is willing to fight about it, he can just say no, that he’ll provide the other documents that he has, but will not make copies of his paid-for transcripts; those they can get from the reporter, just like he did. He can throw in this Government Code language for backup, if he wishes. Then the other attorney will have to fight over this issue if he’s not willing to pay for his copies, and the judge may very well support your client. Or maybe this other attorney won’t even be willing to take the argument that far.
Good luck with this, and keep us informed on what comes of this, please.
Antonia Pulone, CA CSR 3926
DRA Depo Diplomat