Exhibit FAQs

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11Jul2008

Exhibit FAQs

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By Sheila Atkinson-Baker

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Over the years, various questions have come up from attorneys and their staff regarding the court reporter’s responsibility for the handling of deposition exhibits and other documents. Following are some of the questions which have arisen and the general way in which such situations are handled. There are variations of these, of course, depending on the statutes, court rules and case law of various jurisdictions, so we will include the standard disclaimer “This article is not meant as legal advice and you should consult an attorney.” In this article we will be primarily looking at the issue from the viewpoint of the Federal Rules of Civil Procedure since most states have fashioned their rules on the federal model.

Why doesn’t the reporter keep a copy of the exhibits?

This question most often comes up when an attorney wants to order a copy of a deposition after the reporter has already released custody of the original transcript to one of the parties or the court. A reporter is generally required by law to maintain a paper or electronic copy of their notes or the finished transcript (e.g. Federal Civil Rule 30 (f)(2) and similar state rules). The transcript is the product of the reporter and any copy of the transcript later produced by the reporter is an exact duplicate in content of the original.

Exhibits, however, are not the product of the court reporter and it is sometimes critically important which is the original and which is the copy. All exhibit copies should be made from the original exhibit, rather than from a copy of the exhibit. While this may not be a problem when the exhibit is a high-quality photocopy of an article written by an expert, when you get into x-rays, color photographs, light handwriting, blueprints, etc., there can be significant differences between an original exhibit and a copy of a copy. Therefore, the law makes provisions for the parties in the case to examine and make copies of the original deposition exhibits. Chain of custody of an exhibit can also be important, and if the reporter is maintaining a duplicate set of exhibits which is later copied and attached to later transcripts, then you are in essence setting up two sets of original exhibits.

Under certain instances the reporter will retain the originals. A reporter can act as a document depository for a case or series of cases as described in the Federal Judicial Center’s Manual for Complex Litigation – Third, Section 21.444. In other cases, the parties may stipulate that the reporter retain all original exhibits, or a copy of them, in a binder for use throughout all the depositions in the case. But, absent such an arrangement, the reporter does not keep a copy of the exhibits.

What if the witness agrees to turn over additional documents but doesn’t do so?

It frequently happens that a witness will agree to provide some additional documentation to be attached to the finished transcript. While in most cases there is no problem with this, there are rare instances where the witness then does not turn over the requested evidence. In such case, we will try to get the documents from the witness or his attorney to attach to the transcript. If the transcript is needed prior to receipt of the exhibits, we will prepare and send the transcript without the exhibits and then copy, bind and send the exhibits separately upon receipt. “[Exhibits] if their identification is clear, for convenience or any other reason, may be transmitted in a separate package.” (26A C.J.S. Depositions Section 70).

Must the exhibits be attached to the deposition?

Under Federal Civil Procedure Rule 30(f), exhibits, “shall, upon the request of a party, be marked for identification and annexed to the deposition…” It is up to the parties whether or not they want a copy of the exhibits with their copy of the transcript. State law varies on this subject, though it is customary to attach the exhibits.

What if they are not attached?

“Documents referred to in a deposition are admissible in connection with it where properly identified at the trial, even though they are not attached to the deposition. …A deposition should not be rejected because a certain paper referred to therein or which should have been annexed thereto is not produced, unless the production of such papers goes to the very gist of the action. “(26A C.J.S. Depositions Section 90b.)

Mitigating factors include the availability of the document and the existence of parol evidence on the point covered in the missing exhibit.

What is the difference between attaching an original document and a copy of it?

Rule 30(f) allows for a witness to provide a copy, rather than the original, and for all parties to examine the original and the copy to see that they are the same. Evidence Rules 1001-1004 cover when a duplicate may be used. Per Rule 1003, “A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances where it would be unfair to admit the duplicate in lieu of the original.” As the Advisory Committee on Rules Notes to Rule 1003 state, “When the only concern is with getting the words or other contents before the court with accuracy and precision, then a counterpart serves equally as well as the original, if the counterpart is the product of a method which insures accuracy and genuineness.”

What if only one side wants a document attached?

The court reporter is not in a position to rule on the admissibility of any evidence. Rule 30 states that exhibits are attached “upon the request of a party” and that “all objections … to the evidence presented … shall be noted by the officer upon the record of the deposition; but the examination shall proceed, with the evidence being taken subject to the objections.”

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