11/28/2023
I encountered a situation yesterday where a firm is sending out digital "reporters" to record depositions and they are not licensed to do this in the state of Washington and so I thought I would send out what the Washington State rules are so that we can all be protectors of the record.
Court reporters are defined by RCW 18.145.010 within the Court Reporting Practice Act.
Digital reporters are not certified under Washington law. They have no regulatory oversight and are not licensed to practice court reporting.
In Washington, court reporters are mandated to be certified and must pass a proficiency test (which is not easy). They are required to abide by all state laws, court rules and regulations, with sanctions that may be imposed for violations, just like attorneys.
Also, Washington’s notary law prohibits notaries from practicing as court reporters. (RCW 42.45.230 (1)(e). Certified court reporters can administer oaths by law.
You may not be aware that digital reporters are not regulated or licensed by any state approved training program, generally do not hold a degree or certification of any kind, but nevertheless often call themselves “court reporters” which attorneys mistakenly believe are the same as certified stenographic shorthand reporters. They are NOT. Your only record with a digital recorder/reporter is an audio file.
If there is a catastrophic failure, there are no shorthand notes to fall back on. Attorneys and witnesses can do common things like clicking a pen, muffling the mic with their shirt collar, not having proper mic placement, a heavy breather or coughing/sneezing, papers shuffling, that renders the audio recording indecipherable. Often operator errors occur; i.e. someone forgets/neglects/overlooks a setting or switch (like on or off), which has happened multiple times in courtrooms that utilize digital equipment, and nothing is recorded.
When utilizing a digital reporter, the person who records the testimony is rarely, if ever, the same person who transcribes the testimony. The transcriber is not a witness to the proceedings and cannot attest to the verity of the proceedings or the chain of custody of the audio file they receive to transcribe.
When using digital reporters, many are unaware that transcripts oftentimes are outsourced to companies outside of the U.S. for transcription or ASR.; companies that have no regulatory oversight or accountability. To that end, your clients’ full legal names, addresses, phone numbers, social security numbers, children's names, maiden names, and medical and financial records are transferred from hand to hand with no chain of custody (unlike audio files created in courtrooms), nor do you have any idea who has access to this private information.
Unlicensed and uncertified digital reporters are unbound by ethical codes of privacy and confidentiality, as they are working entirely unregulated in Washington. As a result, you may be unpleasantly surprised to find issues of admissibility of their transcripts arising at trial.
Thank you for the opportunity to share this information on court reporters in Washington. To ensure you always have a certified court reporter at your deposition, you may want to update your deposition notices to indicate the deposition will be taken before a Washington Certified Court Reporter based on this information.
I've attached a document that sets forth all of the rules and RCWs that have a hyperlink so that you can view them for yourself. Please also share this with your colleagues so that we can all preserve the record.
Thank you for reading this!!
Roger Flygare, President
WA CCR NO. 2248
