Is That My Video Deposition on YouTube? Best Practices for Law Firms
We perform a variety of legally oriented services her at VR Legal Resources; everything from scanning and Bates Stamping exhibits to preparing and presenting exhibits and demonstratives in court, and, from time to time, we're called upon to videotape a deposition.
We're fortunate to have professional relationships with many of the top law firms in the Los Angeles / Orange County area and a few of these firms handle some of the more popular cases you hear about on television or read about on celebrity web sites.
Being "ringside" during these sometimes intense encounters and watching the verbal jousting that takes place is what keeps me passionate about my career in litigation services, that, and the fact that I'm entrusted with "behind the scenes" information that ethics dictate that I keep confidential.
A few weeks ago I had the good fortune to videotape a young, well known celebrity.
During my initial introduction I always make it clear that "I don't have a dog in this fight" and that I'm simply there to record the event and I try to keep my interaction as friendly and professional as possible.
This particular actor smiled, shook my extended hand and in a joking voice asked "This isn't going to appear on TMZ or YouTube is it?" to which I replied "Of course not!" and then I adjusted his microphone and we got about the business at hand - the video taping of his day-long deposition.
I'm a "Certified Legal Video Specialist" which basically means I'm certified in the proper use of taping such goings on and adhere to a strict code of ethics which dictates the handling of sensitive issues, professionalism, etc,etc.
To date there are 76 NCRA "Standards" (National Court Reporters Association - they oversee us videographers) that I've agreed to abide by. NCRA Standard # 73 states "The videographer shall preserve the confidentiality of the deposition and take whatever steps necessary to ensure this confidentiality".
Seems pretty straightforward. We don't release our videotapes willy-nilly to just anyone, nor, have we ever been approached to do so and we've never really concerned ourselves with the matter.
Well - right on cue I receive an offer from the Merrill Corporation to download this White Paper entitled : "Is That Me On YouTube? Ground Rules for Access, Use and Sharing of Digital Depositions"
This an eleven page, highly referenced, thoughtfully produced guide authored and compiled by Bruce Wessel and Wayne A. Hill, Jr. designed for any law firm that hasn't established a "Best Practices" policy for the proper handling of depositions. And, apparently for good reason.
Imagine if you're this fellow and you just stumbled onto your video deposition that was taken 2002:
"Can they do this?" you ask... obviously "They" can.. and "They" did. Probably legally too - depending on.... well.......
The White Paper addresses a variety of situations that would allow a deposition (transcript) or a video deposition to be accessed by anyone (yep) based upon local and Federal statutes and is quite the eye-opener for those of us in the "trenches".
Topics covered in the paper include:
- Who owns deposition transcripts and video?
- Who has the right to access them?
- What laws govern their use?
- Do protective orders work to protect the witness?
Additionally, let's say the matter never goes to trial but the official transcript is filed with the court, what then?
Download the White Paper, read it thoroughly and and start re-thinking your firms Best Practice procedures for handling, storing and sharing your depositions.
Now, for my part I focused on California law, specifically CCP 2025.570 which is entitled: Furnishing of copies of transcript or recording by deposition officer; Charge; Notice to parties of right to seek protective or; Applicability of section
(a) Notwithstanding subdivision (b) of Section 2025.320, unless the court issues an order to the contrary, a copy of the transcript of the deposition testimony made by, at the direction of, any party, or an audio or video recording of the deposition testimony, if still in the possession of the deposition officer, shall be made available by the deposition officer to any person requesting a copy, on payment of a reasonable charge set by the deposition officer.
(b) If a copy is requested from the deposition officer, the deposition officer shall mail a notice to all parties attending the deposition and to the deponent at the deponent's last known address advising them of all of the following
- The copy is being sought
- The name of the person requesting the copy
- The right to seek a protective order under Section 2025.420
(c) If a protective order is not served on the deposition officer within 30 days of mailing of the notice, the deposition officer shall make the copy available to the person requesting the copy.
So, in hindsight, under the right conditions the young celebrity's video deposition could have made it onto TMZ or YouTube.
So now I know and, so do you.
