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Off the Record to Request a Protective Order

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08May2018

Off the Record to Request a Protective Order

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By Atkinson-Baker Court Reporters

Generally reporters must remain impartial and avoid doing anything which has the appearance of taking sides.  But we all know that situations can arise where the reporter is asked to do something by one attorney and it is objected to by opposing counsel.

Requests to go off the record is one such scenario.  Generally reporters should stay on the record unless all parties agree to go off the record and should advise counsel present of this if a conflict arises.

However, under CA law, and perhaps in other jurisdictions, there is an exception to this at depositions. That is when there is a request by counsel to suspend the deposition to move for a protective order.

CA CCP 2025.470 states that a reporter may not suspend the taking of testimony without stipulation of all parties.  It also states, however, that a deposition may be suspended in order for a party or deponent to move for a protective order.  If the attorney indicates on the record that it is his/her intention to suspend the deposition for this purpose, then the reporter is justified in ending off at that point.

In such a scenario, it is best to let the attorneys present state their positions into the record.  At that point, per the CA Code of Civil Procedure, the deposition may be suspended.

CA Code of Civil Procedure

2025.470. The deposition officer may not suspend the taking of testimony without the stipulation of all parties present unless any party attending the deposition, including the deponent, demands that the deposition officer suspend taking the testimony to enable that party or deponent to move for a protective order under Section 2025.420 on the ground that the examination is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses that deponent or party.

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