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| Jurisdiction | Utah,United States |
| Citation | Vol. 7 No. 6 Pg. 23 |
| Pages | 23 |
| Publication year | 1994 |
June, 1994
Utah Deposition Primer - Part III
David K. Isom, J.
III. CREATING AND USING THE DEPOSITION RECORD
A. Officer and Reporter
A deposition must have the following components, unless otherwise stipulated: (1) the deponent must be put under oath by the proper "officer," i.e., any person authorized to administer oaths by the laws of the United States or of the place where the examination is held, or by a person appointed by the court in which the action is pending;[1] (2) the testimony must be given before the officer; and (3) the testimony must be recorded by the officer or someone under her direction.[2] The officer may not be an attorney of any of the parties, nor a relative or employee of a party or party's attorney, nor have any financial interest in the action.[3] You must object to the qualifications of the officer as soon as grounds for objection are discovered or should have been discovered.[4] To preserve such objections, therefore, you should ask about those qualifications before the deposition proceeds.
By written stipulation, the parties may provide that depositions be taken before any person, at any time or place, upon any notice and in any manner.[5] Thus, the parties may change all of the preceding rules regarding officers by stipulation.
B. Recording the Deposition
Under the new federal rules, the deposition may be recorded by sound, sound-and-visual, or stenographic means.[6] Under current Utah rules, non-stenographic recording still requires a stipulation or court order.[7] Increasingly, courts are tolerating and even encouraging video and audio recording of deposition testimony.[8] Several courts have described acceptable procedures for both audio and video recording.[9] Excellent articles are available regarding the advantages and disadvantages of electronic recording and various safeguards for accuracy and fairness.[10]
For each deposition, you should weigh the advantages and disadvantages of video or audio recording against the advantages and disadvantages of stenographic recording. For example, the relative cost and convenience will vary depending on the parties' desire for a written transcript of the recording, the expense and availability of recording equipment, and the fees charged for the various recording methods. Deposition costs may be recovered by the prevailing party under some circumstances.[11] Electronic recordings may be more difficult to edit for use as evidence than written transcripts, but will have a greater impact on the judge and jury at trial and will aid the fact-finder in weighing credibility. You should also consider the significant influence electronic recordings may have on the tone and procedure of the deposition. For example, a reluctant witness may be more candid when she is "on television," and counsel will be less likely to confer repeatedly with her client if the conference is shown on videotape.
C. Telephone Depositions
Upon a court order or stipulation of the parties, a deposition may be conducted by telephone or other remote electronic means.[12] Courts are divided in their attitude about telephonic depositions,[13] but video teleconferencing may alleviate concerns created by the inability of participants to see each other.
Obviously, telephone depositions can save enormous expense in some situations, and can be effective for discovering some types of objective evidence, such as accounting information. Because of the difficulty of reading and controlling the witness by telephone, however, complex depositions which involve subjective matters or which challenge a witness's credibility are not likely to be effective by telephone.
D. Transcribing the Deposition
The rules do not require that the party noticing the deposition or any party order a transcript so long as the deposition is recorded by some means.[14] However, any party may arrange for a written transcript to be made at the deposition or from the recording of a deposition taken by non- j stenographic means.[15] The party noticing the deposition must give "ample notice" if she does not intend to order a transcript so that other parties may arrange to do so if they wish.[16] If any party or witness requests a transcript, the party instigating the deposition may be required to pay for transcription.[17]
Although a transcript is not required initially, and will never be required if all parties agree that the deposition was not important, as a practical matter important depositions will need to be transcribed for summary judgment,[18...
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