Managing Transcripts: Procedure and Technology

By Joe Howie
 

ALSP Board members Barbara Bennett of Dickinson Wright and Toni Millican of Chesapeake Energy both provided substantial input to this article.

Many people in the litigation support profession focus on one part of the litigation process, e.g., electronic discovery or scanning or reviewing paper records, and don’t necessarily get involved in the whole case life cycle. This article provides an overview of an important component of the litigation process: managing deposition transcripts.

Rules governing depositions in federal civil cases are provided in the Federal Rules of Civil Procedure. Rule 30 governs depositions and Rule 45 governs the issuance of subpoenas to compel the testimony of non-parties (i.e., someone other than a plaintiff or defendant) or the production of records by non-parties. Deposition testimony may be used at the trial itself subject to the provisions of Rule 32 which requires essentially that the party against whom the testimony is offered must have received adequate notice of the taking of the deposition in the first place. State Supreme Courts will have generally comparable provisions regarding depositions in state courts.

The Rules of Civil Procedure provide that either party may compel the oral testimony of witnesses by giving notice as provided in the rules. See the sample notice. When the notice requires the witness to bring documents or other records, the Latin phrase “duces tecum” is used, meaning “bring with.”

Various means of recording testimony are allowed, including audio and video recording; however, this article focuses primarily on the creation of deposition transcripts by stenographic reporters. Transcripts contain the text of the words spoken by the lawyers and the witness during the deposition, beginning when the witness is sworn in. (See the sample transcript.)

Preparing for Depositions. Depositions are normally scheduled after initial documents or e-Discovery have been produced. Paralegals typically search the discovery database for all references to the witness, and the lawyer who will be representing the witness or the party providing the witness will review those records with the witness beforehand.

Stenography. Nearly all court reporters create transcripts using special equipment and software manufactured by the Stenograph company, based in Mt. Prospect, Ill. (see companion article, “Court Reporting Hardware: The Steno Machine”). Court reporters use this 22-key keyboard to create verbatim transcripts of what is said during the deposition. The reporter “trains” his or her equipment to know what words are intended by which particular keystroke combinations. This means that not all reporters are created equally. A reporter who specializes in a particular industry or area of practice may be far more proficient because he or she will have created specialized dictionaries containing the specialized terms used in that area.

Page and Line References. Transcripts are formatted with numbers for every page and within pages line numbers appear down the left margin. This system enables lawyers and the court to refer to specific paragraphs or sentences.

Court Reporting. Court reporters can record 225 words per minute or more, and typically earn from $30,000 to as much as $100,000 or more per year. People who are interested in court reporting as a profession could study the Web site of the National Court Reporting Association (www.ncraonline.org), which has a wealth of information about the history of court reporting, and review the Stenograph LLC site (www.stenograph.com). Stenograph has its own educational facilities as well as an online learning course. Public and private educational providers also teach court reporting skills. For more information, see www.bestfuture.com.

Exhibits. Documents shown in court generally have stickers placed on them with reference numbers — e.g. Plaintiffs Exhibit 15 — so that the record will be clear about which document is being discussed. Rather than have the same document appearing under different exhibit numbers in different depositions, plaintiffs and defendants will often agree to use the same set of exhibits for all depositions. Using this approach, only one record is associated with each exhibit number; the number sequences do not start over for each deposition.

Transcript Formats. Court reporters can provide transcripts in a variety of formats, including paper copies and multiple electronic formats. With electronic transcripts, court reporters can scan exhibits and provide tiff or PDF versions.

Witness Review. The witness will typically have 30 days to review a completed transcript and make any necessary corrections. The corrections can be typographical (e.g., “Smith” should have been spelled “Smythe”) or substantive (e.g., “Yes” should have been “No”). The witness lists the changes and the reasons for the changes on an errata sheet, which is attached to the transcript along with the exhibits. Some reporters use RealLegal digital signatures to provide electronic proof of signatures and assure the transcript has not been altered or tampered with.

Real-Time Transcripts. The company LiveNote has developed a technology that enables court reporters to give attorneys in the deposition room or across the country access to the text of transcripts during the deposition as the witness is speaking. This tool can be very helpful in resolving disputes about earlier statements in the deposition and determining whether the witness is being consistent. CT Summation’s iBlaze litigation support software can also support real-time depositions. The lawyer’s laptop needs a special USB/Serial port cable that connects the lawyer’s laptop to the reporters Stenograph machine. This service should be arranged with the court reporter well in advance and thoroughly tested before the day of the deposition.

Managing Transcripts. Deposition transcripts obviously contain critical case information. The complexity of the case and the number of deponents will affect how transcripts are managed. Some court reporters can provide RealLegal transcripts that include the software needed to search and print the transcripts as well as a separate viewer for working with electronic versions of exhibits. Key functions to consider when evaluating different software packages include:

• Searching. Lawyers need to be able to find where a witness used specific terms. Virtually any litigation support software package will accept the ASCII text files produced by court reporters and permit users to search the transcripts using Boolean operators (and, or, not) as well as proximity operators (e.g., one term within so many other words of a second term). The user should be able to advance to the location in the transcript where the search terms occurr.
  Normally transcripts are loaded in a database with a transcript-specific template with fields such as deponent, deponent affiliation, date and volume number. Ideally, users can perform concatenated searches where the same search is executed against multiple databases and results are consolidated. This method lets the user search across databases that contain scanned paper records, electronic discovery and transcripts.
• Annotating/Digesting. As lawyers or paralegals review transcripts, they should be able to add annotations to incorporate their own analysis or summary of passages being reviewed. In systems such as Summation and Concordance, those annotations or notes are themselves searchable. Traditionally, associates or paralegals would create deposition summaries or digests in completely separate documents, but some litigation support software can print annotation reports that serve the same purpose as a digest while also being integrated with the transcript itself. Another use of annotations can be to indicate where a witness changed the transcript after reviewing it.
• Synching to Final Transcript. The court reporter may provide an expedited transcript as a sort of draft of the final, then release a final copy that is more thoroughly reviewed and edited. Users will want to upload the final text without losing earlier annotations.
• Issue Coding. Transcript review software should enable the lawyer or paralegal to assign issue codes to specific transcript passages. Those issue codes are also used when reviewing the documents and e-Discovery records so that the litigation team can pull together all discovery relating to a particular issue.
• Linking to Exhibits. In the ideal system, users can quickly examine exhibits that are referenced in the transcript by clicking on links that take them to the exhibits.
• Reports. Special reports printed either to paper or PDF can be useful for many purposes. Users should be able to perform a search and have the results placed in the report with search terms shown in the context of the question-and-answer pair that contained the term. The user may also be able to specify how many lines above or below the search term to include in the report.
• Importing/Exporting With Annotations. Often in big cases, lawyers will use more than one transcript system for different purposes — perhaps using LiveNote for real-time monitoring of depositions, then putting transcripts into other litigation support software that also indexes the paper and e-Discovery collections. Litigation support managers will want to ensure that any annotations entered in one system can be brought into the other system. For example, Concordance and Summation can import and export files for LiveNote that include annotations.
• Printing. Some lawyers like to work from paper copies for certain witnesses; transcript management software will support various formatting options for printing transcripts. For example, TextMap can print a paper version of a transcript with a built-in index indicating where different words appear in the transcript (RealLegal and ProText have this capability as well).
• Synching Video Depositions. Special software enables lawyers to search transcripts and immediately display and listen to corresponding video portions. Many law firms outsource this synching to the court reporter or specialized service providers.

This article appeared originally in the February 2008 ALSP Update, the monthly publication of the Association of Litigation Support Professionals and is reprinted with permission. Read more about this nonprofit membership organization at www.alsponline.org.