In the legal world, deposition practices have traditionally relied on stenographers to meticulously transcribe depositions. However, a new trend seems to be emerging, shaking up the traditional landscape of deposition procedures.

ZR Per Diem attorneys have experienced non-stenographer typist notaries being employed to conduct depositions, supplemented by audio-back up to ensure that none of the testimony is  missed. The departure from the traditional stenographic method raises questions about the legality and implications of such practices.

This new phenomenon sparked curiosity and concern within our team, prompting us to do a deep dive on the subject.

The following pertinent statutes governing the conduct of depositions in New York. CPLR 3113 outlines the requirements for individuals authorized to administer oaths during depositions. 

While stenographers have long been the standard choice for recording testimony, NY CPLR 3113(b) states “testimony shall be recorded by stenographic or other means, subject to such rules as may be adopted by the appellate division in the department where the action is pending. All objections made at the time of the examination to the qualifications of the officer taking the deposition or the person recording it, or to the manner of taking it, or to the testimony presented, or to the conduct of any person, and any other objection to the proceedings, shall be noted by the officer upon the deposition and the deposition shall proceed subject to the right of a person to apply for a protective order. “

Furthermore, 22 NYCRR 202.15 provides guidelines for videotape recording of civil depositions, with subsection J permitting the use of audio recording alone, provided it is explicitly stated in the notice of deposition or subpoena. This provision ensures transparency and allows parties to prepare accordingly for the deposition process.

In our opinion, it appears that the use of non-stenographer typist notaries with audio back-up is permissible under certain conditions outlined in the relevant statutes. However, it's essential for parties involved in the deposition process to be aware of these practices and exercise their right to object if necessary.

Subsection J of 22 NYCRR 202.15 states ““Except where clearly inapplicable because of the lack of a video portion, these rules are equally applicable to the taking of depositions by audio recording alone. However, in the case of the taking of a deposition upon notice by audio recording alone, any party, at least five days before the date noticed for taking the deposition, may apply to the court for an order establishing additional or alternate procedures for the taking of such audio deposition, and upon the making of the application, the deposition may be taken only in accordance with the court order.”

If a party objects to the use of audio recording during a deposition, they should raise their concerns promptly upon receiving the notice and may file a motion for a protective order. Additionally, objections made during the deposition itself should be noted by the officer conducting the deposition, as mandated by CPLR 3113(b).

While the emergence of non-stenographer typist notaries utilizing audio back-up for depositions may signify a shift in deposition practices, it is crucial to navigate these changes within the bounds of procedural guidelines.

ZR Per Diem is currently conducting research to gather more information and insights surrounding this emerging phenomenon. We are committed to providing our clients and per diem attorneys with comprehensive coverage and analysis of this issue. 

Stay tuned for future updates as we continue to explore and discover valuable data on this topic!

*ZR Per Diem Services LLC is not a law firm and does not dispense legal advice.*

For tips on effectively preparing per diem attorneys for court appearances, check out our blog post on the Best Ways to Prep a Per Diem.