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Taking Video Depositions: Legal Issues

Authors: David Markowitz and former Markowitz Herbold litigator Lynn Nakamoto

This article provides an issue-based summary of current procedure governing the taking of video depositions in Oregon state and federal courts. For ease of reference, we may refer to such visual record as a videotape, although current technology permits electronic or digital visual recording. We do not cover practical issues related to videotaping, such as modifying preparation of the deponent or editing video testimony, or to the use of video deposition testimony with respect to various aspects of litigation preparation, court proceedings, or settlement. David Markowitz will address those practical issues on March 8, 2002, in a CLE presentation at the Litigation Section’s 9th Annual Litigation Institute and Retreat. As noted below, although ORCP 39 and Fed. R. Civ. P. 30 are the rules generally governing depositions, litigators may have to look beyond those rules for guidance.

Right to videotape.
Both ORCP 39 and Rule 30 provide that a party may videotape deposition testimony. Under ORCP 39 D(2), a deposition is to be recorded stenographically or else pursuant to ORCP 39 C(4), which allows for testimony to be recorded by other than stenographic means. A trial court has no discretion under ORCP 39 C(4) to prohibit videotaping; it is a right. State ex rel Anderson v. Miller, 320 Or 316, 318-19, 882 P2d 1109 (1994). However, a court may require stenography “if necessary to assure that the recording be accurate,” ORCP 39 C(4), and a party may seek a protective order to prohibit or limit videotaping under ORCP 36 C, Miller, 320 Or at 319, or ORCP 39 E.

Prior to 1993, video depositions in federal court actions were not permitted as of right. Since 1993 amendments to Rule 30(b), depositions may be videotaped at the election of a party noticing the deposition. Under Rule 30(b)(2), unless the court orders otherwise, a deposition “may be recorded by sound, sound-and-visual, or stenographic means.” As in Oregon courts, a party in federal court may seek a protective order should circumstances warrant it, pursuant to Fed. R. Civ. P. 26(c), Wilson v. Olathe Bank, 184 F.R.D. 395, 396 (D. Kan. 1999), or Rule 30(d)(4) once a deposition begins. Thus, in Paisley Park Enterprises, Inc. v. Uptown Productions, 54 F. Supp. 2d 347 (S.D.N.Y. 1999), the court ruled that although a videotaped deposition of Prince, a musician and entertainment figure, would be allowed by defendants accused of making unauthorized use of Prince’s name, likeness, and other intellectual property, the defendants would have restricted access to the videotape to prevent them from exploiting it for commercial purposes, such as posting on their website.

Proper notice.
In both state and federal actions, parties must provide notice of the video recording method if it is to be used. General notice requirements for state court depositions are covered in ORCP 39 C(1). A party need not state that stenographic recording will be used; that is the default method. See ORCP 39 C(1) and (4). However, if non-stenographic recording will be used, “the notice shall designate the manner of recording and preserving the deposition.” ORCP 39 C(4). By providing that “[u]pon request of a party or deponent and payment of the reasonable charges therefor, the testimony shall be transcribed,” Rule 39 C(4) appears to allow other parties or the deponent to notify the party taking the deposition that a simultaneous stenographic transcription of the testimony will also be made.

The party taking the deposition must affirmatively state the recording method to be used in federal court depositions. Under Rule 30(b)(2), in addition to other information required by Fed. R. Civ. P. 30(b)(1), the “party taking the deposition shall state in the notice the method by which the testimony shall be recorded.” Rule 30(b)(3) provides other parties with the express right to notify the deponent and other parties that they will record testimony by an additional, different method at their own expense.

Dual recordation with stenography.
Neither ORCP 39 nor Rule 30 requires the party conducting the deposition to ensure both video and stenographic recording at the same time. In Oregon courts, Rule 39 D(2) allows another party or deponent to request, and pay for, stenographic transcription.

In federal court, under Rule 30(b)(2), to the extent that a party designates video recording without simultaneous stenographic recording and no other method of recording is cross-designated, any “party may arrange for a transcription to be made from the recording.”

However, simultaneous stenographic transcription may assist in selection of testimony and editing. In addition, in federal court, a transcript of pertinent video deposition testimony to be used at trial must be provided to the court in pretrial disclosures under Fed. R. Civ. P. 26(a)(3)(B) and use in motion practice pursuant to Fed. R. Civ. P. 32(c), unless otherwise ordered by the court. Whether to use dual recordation may be influenced by costs, both initial costs and whether the expense is recoverable by the prevailing party through taxation of costs.

Costs of videotaping initially.
Under the Oregon rules, by implication, the party noticing the video deposition pays for the videotaping. See ORCP 39 D(2) and 39 G(4). Any party or the deponent shall pay for copies of the video, and the party that took the video deposition shall furnish copies. ORCP 39 G(4).

The federal rules expressly address payment for recordation of deposition testimony. The party noticing the deposition pays for the videotaping initially. Rule 30(b)(2). A party who designates an additional method of recordation pays for that record unless the court orders otherwise. Rule 30(b)(3).

Recovery of deposition expenses as a taxable cost.
Under ORCP 68, the “expense of taking depositions shall not be allowed, even though the depositions are used at trial, except as otherwise provided by rule or statute.”

Under Fed. R. Civ. P. 54(d)(1), “costs other than attorneys’ fees shall be allowed as of course to the prevailing party unless the court otherwise directs” or they are barred by a rule or statute. Pursuant to 28 U.S.C. § 1920(2), “court reporter” fees “for all or any part of the stenographic transcript necessarily obtained for use in the case” are awarded as costs to the prevailing party absent a statute to the contrary.

The Ninth Circuit has not addressed to what extent the costs of video depositions will be taxed against the losing party in any published opinion. Nationally, courts are divided on how such costs are awarded. Some courts hold that the plain text of § 1920(2) does not permit costs for video depositions at all. Others permit an award of costs for only one method of recordation when both stenography and video were used in a deposition. Other courts allow an award for both because the civil rules require written transcripts to be able to use video depositions in dispositive motions and in trial. See generally Kurtis A. Kemper, Annotation, Taxation of Costs Associated with Videotaped Depositions under 28 U.S.C.A § 1920 and Rule 54(d) of Federal Rules of Civil Procedure, 156 ALR Fed 311, 321-23 (1999).

Mandated requirements for videographer.
Oregon rules do not on their face require that the videographer generally be a person authorized to administer oaths under Oregon law. Although “the deposition shall be preceded by an oath or affirmation administered to the deponent by an officer authorized to administer oaths,” ORCP 38 A(1), and that officer “shall put the deponent on oath,” ORCP 39 D(1), the rules do not specify that the deposition must be taken before such as an officer. However, there may be specific limitations on those who may be a videographer, even if there are no minimum qualifications stated in the civil rules.

In 1999, the Oregon legislature enacted a number of statutes relating to the reporting of depositions. First, ORS 45.135 enumerates those who are disqualified from “stenographically” reporting a deposition in a civil action, ORS 45.135(1), and states that any “deposition recorded or reported by a person in violation of this section may not be introduced in evidence or used for any other purpose in a civil action.” ORS 45.135(2). Pursuant to ORS 45.138, reporters have certain duties, including personal responsibility “for the accurate and complete recording or reporting of the deposition” and equal treatment for the litigants in the proceeding. Under ORS 45.142, a court reporter must disclose any contract to provide reporting services for depositions for parties or those with a financial interest in the outcome and their attorneys, and a party may object to the reporter. The broad language in ORS 45.135(2) and the use of the terms “recording and reporting” in the other two statutes strongly suggests that a videographer or a person recording a deposition by sound, even if not literally a stenographer, cannot be among those listed in ORS 45.135(1).

The federal rules provide that, unless otherwise stipulated, the deposition must be taken before an officer authorized to administer oaths. Fed. R. Civ. P. 28(a). Rule 30(b)(4) provides that absent agreement, “a deposition shall be conducted before an officer appointed or designated under Rule 28.” Under Rule 28(c), the deposition cannot be taken “before a person who is a relative or employee or attorney or counsel of any of the parties, or is a relative or employee of such attorney or counsel, or is financially interest in the action.” Thus, if a party administers the oath, the deposition is not usable. Ott v. Stipe Law Firm, 169 F.R.D. 380, 381 (E.D. Okla. 1996). Although it might be argued that Rule 28(c) requires an independent camera operator, a number of courts have concluded that the federal rules do not directly address whether the camera operator must be independent.

In Colonial Times, Inc. v. Gasch, 509 F.2d 517, 522 (D.C.C. 1975), for example, the court analyzed whether an independent operator was required to preserve trustworthiness and accuracy in light of one of the purposes for allowing non-stenographic recording, namely, cost reduction. The court would not require an independent operator unless there were no other alternatives to guarantee trustworthiness. In Ott, one of the plaintiff’s attorneys operated the video camera. 169 F.R.D. at 381. The district court agreed that Rule 28 did not prohibit the attorney from doing so, id., and absent any indication of irregularities in the recording, the court would not strike those depositions for which counsel was the videographer. 169 F.R.D. at 382. In Rice’s Toyota World, Inc. v. Southeast Toyota Distributors, Inc., 114 F.R.D. 647, 651 (M.D.N.C. 1987), the court similarly ruled that counsel’s operation of the camera was not barred by Rule 28, explaining in part that a stenographer is different from someone making a “stationary video recording,” who does not engage in interpretation of what people say during the deposition.

Videotaping only a portion of the deposition.
Continued depositions occur in state proceedings, and although in federal court, depositions are now presumptively limited in duration and theoretically should be completed in one day, occasions still arise when depositions are continued. An attorney may wish to videotape the continuation of the deposition for a variety of reasons, including capturing conduct by the witness or one of the attorneys observed at the first session of the deposition that will not appear in the stenographic transcript. Can a party re-designate the method of recordation for the continued portion of the deposition or otherwise choose to videotape only part of a deposition?

Our firm has successfully excluded video recordings from trial when only part of the deposition was videotaped and a timely objection was made at the time of the deposition. See Barman v. Union Oil Co. of California, No. CV 97-563-AS (2000) (unpublished ruling on motion in limine available through our office on request). In both Oregon and federal actions, if only part of a deposition is offered in evidence by a party, an adverse party may require the party to introduce all of it that is relevant and in fairness should be introduced. ORS 45.260; Fed. R. Evid. 106; Fed. R. Civ. P. 32(a)(4). Our argument is based primarily on the inability to exercise a right to introduce other portions of the deposition that were not videotaped. There are courts that have allowed switching the method of recording, however. In Riley v. Murdock, 156 F.R.D. 130, 130-31 (E.D.N.C. 1994), the court denied a motion for protective order to prevent the plaintiff from switching from stenography to video recording of the defendant’s deposition, despite the defendant’s argument that video would unfairly emphasize those portions of testimony videotaped over those stenographically recorded. The court addressed this by allowing any of the defendants, including the deponent, the choice to repeat questions previously recorded stenographically during the video testimony.

How videotaping occurs at the deposition.
The manner of videotaping depositions can raise a host of concerns for attorneys. Considerations may include the conditions of the room; the backdrop and lighting; camera placement, angle, and movement/zooming; what activity will be “on the record,” such as the reading of exhibits by the witness; who will wear a microphone; who will appear on-screen, including the number of cameras; and whether the recording is in color or black and white. The current local practice is to have a color video camera focused on the witness only and set up so that when answering the questions posed, the witness faces the camera, with microphones for the witness and the attorney conducting the deposition. The civil rules provide little guidance in these matters, although a few cases have addressed various practical concerns. See, e.g., Rice’s Toyota World, 114 F.R.D. at 652 (single stationary camera running continuously with no special lighting); In re Daniels, 69 F.R.D. 579, 582 (N.D. Ga. 1975) (no zoom lens).

The Oregon and federal rules appear directed to tampering with or distortion of the recording rather than to its mechanics. Rule 30(b)(4) requires that the videographer make certain identifications at the beginning of each unit of videotape and states that the “appearance or demeanor of deponents or attorneys shall not be distorted through camera or sound-recording techniques.” The Oregon rule appears devoid of any practical requirements for the taking of videotaped deposition testimony. However, for any video deposition to be used in an action, the attorney for the party taking the deposition “shall certify under oath that the recording” is “a true, complete, and accurate recording of the deposition of the witness and that the recording has not been altered.” ORCP 39 G(1).

Should the parties disagree regarding the mechanics or conditions of the videotaping, any objections must be raised at the time of the deposition or else they are waived. “Errors and irregularities occurring at the oral examination in the manner of taking the deposition, . . . in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition.” ORCP 41 C(2); accord Fed. R. Civ. P. 32(d)(3)(B). This would also apply to improper or bad faith conduct of counsel or others at the deposition. Such behavior during video depositions can lead to sanctions. In one case, after a defense verdict, a federal district court granted the plaintiff a new trial because of defense counsel’s bad faith objections during the video deposition of the plaintiff’s expert. Because the expert was unable to attend trial, the conduct during the deposition testimony so interfered with that expert’s presentation to the jury that it became “a hodgepodge, completely lacking in direction and continuity.” Kelly v. GAF Corp., 115 F.R.D. 257, 257 (E.D. Pa. 1987).

Finally, any “errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, endorsed, transmitted, filed, or otherwise dealt with under Rules 39 and 40 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.” ORCP 41 D; accord Fed. R. Civ. P. 32(d)(4).

To alleviate disputes, parties may wish to specify and stipulate to the conditions under which video depositions will be taken. An example of an order concerning the same can be found in In re Norplant Contraceptive Products Liability Litigation, No. MDL 1038, 1996 WL 42053 at *4-*5 (E.D. Tex. Jan. 19, 1996) (procedural order that addresses, among other things, conditions for videotaped depositions, including the application of Rule 28(c) to the videographer, the camera system, simultaneous stenographic recording, and interruptions in camera operation).

This article appeared in the July 2001 issue of the Oregon State Bar's Litigation Journal.