7 Questions to Consider When Taping Depositions for Texas Civil Cases

If you’re practicing in Texas and want to incorporate taped testimony in your upcoming case, you’re in luck.  Much like California and New York, Texas allows parties to use taped deposition testimony as evidence in the same manner they can with stenographic deposition transcripts. Just because Texas treats taped depositions as eligible evidence doesn’t mean that any video you take is automatically admissible.  You’ll still need to follow critical steps when sending out notices and conducting depositions to ensure your taped deposition footage is admissible. 

Fortunately, much of these steps revolve around how you prepare to take the interview, along with how you provide notice to other parties.  Here are some things to keep in mind as you prepare for your next deposition:

  • Did You Notify All Parties? —If you want to tape any deposition related to your case, you’ll first have to timely notify all parties of your intent to do so. Under Rule 199.1, you can do this by stating your intent in the original deposition notice or by sending a subsequent notice at least 5 days before the deposition date. You must state that you are videotaping the deposition and indicate if it will be stenographically recorded simultaneously.  If you are requesting to tape the deposition, you must provide a certified oath-giver and ensure the final video is an intelligent, accurate, and trustworthy depiction of the deposition. You will also be responsible for furnishing recording equipment and related taping costs unless a judge orders otherwise.
  • Who is Handling Your Equipment? —Unlike other states, Texas is flexible on who can operate your recording equipment.  When read together, Rules 154.101(f) and Rule 154.114 of the Texas Government Code allow attorneys, parties, and their full-time employees to videotape depositions and operate related equipment.  As Burr v. Shannon shows, judges could unilaterally institute protective measures governing how you record your video.
  • Should You Bring a Stenographic Recorder to the Deposition?Rule 203.6(a) gives courts the discretion to require parties to have a certified stenographer transcribe their depositions. While stenographers can transcribe your depositions in real-time, they’re allowed to transcribe them afterward by watching the original tape or a certified copy.
  • Where Are You Holding the Deposition?—Rule 199.2(b)(2)(A-E) states you may need to hold your deposition in the county where your deponent resides, works, transacts business in person, or was served.  It can also take place in the county where the lawsuit was filed if the deponent is a party. You should ensure the location you use supports high-quality audiovisual recording equipment to ensure high-quality footage.

Once you’ve served your notices, you’re now ready to tape your deposition.  This doesn’t mean you’re out of the woods just yet.  As you prepare to tape your deposition, make sure you consider the following questions to avoid additional admissibility obstacles:

  • Are You Following Proper On-Camera & Off-Camera Procedures?—Under Rule 199.5, the deponent must be in the deposition room on all days the deposition is taped and must be sworn in on-camera.  Parties who request the deposition to be held by telephone or via remote feed must arrange for all parties to participate in this manner.  Lawyers are then free to examine and cross-examine the witness but must do so within specified time limits and other procedural restrictions. Parties can also submit written questions for the deposition officer to read to the deponent.  After the deposition has concluded, the deposition officer must file a certification with the court and all parties that complies with Rule 203.2.
  • Are You Observing Deposition-Specific Conduct Rules? —Lawyers taking depositions face restrictions unique to Texas depositions.Under Rule 199.5, each party is limited to six hours for examination and cross-examination, excluding time taken for breaks or off-the-record comments. Lawyers can also only raise leading-question, form-of-question, and non-responsive-answer objections during the deposition, and cannot confer privately with other parties or deponents while the deposition is in progress. While lawyers can instruct deponents not to answer questions, they must only do so to preserve privileges, comply with court orders or civil procedure rules, avoid argumentative or misleading questions, or to preserve their right to a hearing regarding the deposition.
  • Do I Need to Show the Final Tape to the Deponent? Rule 203 normally requires parties to submit stenographic transcripts to deponents and allow them to attach corrections or explanations relating to their answers.  Parties who request to tape depositions of adverse deponents can take advantage of a procedural quirk that prevents them from doing this.  This is because Rule 203.1(c)(3) waives this presentation requirement for taped oral deposition recordings.

Lawyers and parties who don’t follow proper deposition procedures or who are argumentative and suggestive with their objections could risk assuming deposition costs, facing sanctions, waiving their objections, and terminating their depositions. Judges could also allow in testimony, objections, and discussions from the deposition that undermine the deponent’s credibility.

How You Can Use Taped Deposition Footage in Texas Courts

As Texas Rules of Evidence Rule 801(e)(3) states, a deponent’s statements during a taped deposition constitutes non-hearsay evidence and may be used at trial regardless of whether the witness is available or unavailable to testify. You can use this evidence on its own or to refute written or recorded statements offered by your adversary under Rule 106. You can also use prerecorded deposition testimony to impeach witnesses [Rule 801(e)(1)(A)(i)]; provide context to a deponent’s in-trial statements (Rule 107); or prove the content of a writing, recording or photograph (Rule 1007). When a deponent is unavailable to testify, you could use deposition testimony given in a different proceeding. According to Rule 804(b)(1)(A)(i-ii), this is allowed if it’s offered against the same party and that party had an opportunity to examine or cross-examine the deponent.

While Texas allows lawyers to use deposition footage at trial, you’ll still need capable filming and recording tools to produce admissible footage that’s intelligible, accurate, and trustworthy. CaptureCast Legal offers tools that lawyers of all technical backgrounds can use to record and submit pretrial deposition footage into evidence. Contact us to see how CaptureCast Legal can enhance your litigation capabilities.

Disclaimer: This article has been prepared for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any specific issue or problem.

8 Questions You Should Consider When Preparing Deposition Recordings as Evidence in New York

New York’s Civil Procedure Laws and Rules (CPLR) takes an open-minded approach toward treating pre-trial deposition footage as evidence in civil court proceedings. CPLR Rule 3113(b) authorizes parties to record depositions through stenographic or “other means,” although the details of this requirement can vary based on the individual rules that apply to each of New York’s four appellate divisions. As  Rule 202.15 confirms, the term “other means” is expansive enough to include deposition video and audio recordings.

Although you’re not required to demonstrate any special need to film or otherwise record a deposition, you’re still required to follow certain formalities beforehand to ensure the recordings you submit meet CPLR standards. Failing to do so could lead to admissibility obstacles that could preempt you from using invaluable visual, pre-trial testimony at trial. Some questions you should ask yourself as you prepare for your next deposition include:

  • Have You Included the Right Disclosures in Your Stipulation? – Every notice or subpoena for a deposition must disclose that the deposition will be taped and include the name and address of the operator. If the parties agree to participate electronically or via telephone, the stipulation should cover how the parties will generate an accurate record of the deposition and use exhibits. It should also state who will be present at the deposition.
  • Should I Transcribe the Deposition? – The CPLR allows parties to transcribe recorded depositions either during or after the deposition. Nonetheless, you should be prepared to furnish stenographic transcripts of your depositions upon request. Trial court judges, for example, can request parties to submit deposition transcripts at any point during a trial. You’re also required to submit transcriptions of any recorded depositions on appeal.
  • How Should I Record the Deposition? —The CPLR gives parties leeway to use multiple cameras individually or at once while filming a deposition. New York also permits firms to use deposition officers or even their own employees to control pertinent recording equipment.

After you notify your parties and prepare your taping room for recording, you’ll need to record the deposition. Rule 202.15(d) describes the steps that parties must take during the deposition to be considered admissible. Naturally, some additional questions you should account for include:

  • Did I Follow Proper On-Camera Procedures? – Once the deposition recording begins, one of the attorneys or the equipment operator must state the name and address of the operator and the operator’s employer; the date, time, and place of the deposition; and the party on whose behalf the deposition is being taken. The deposition officer must also identify himself or herself and swear in the witness on camera. Parties will also need to use a time-date generator to time the deposition, and orally announce the time and date at the beginning and conclusion of each recorded segment. The operator must also announce the beginning and end of each taped segment if the deposition consists of multiple tapings or storage units. Once the deposition concludes, the operator must state on camera that the deposition has ended.
  • Did the Deponent Review the Recording? – Under Rule 3116, the deponent must have the opportunity to examine his or her testimony for accuracy and changes. Likewise, Rule Rule 202.15(d)(4) requires the deponent to examine any recordings of his or her deposition. The deponent and parties, however, can collectively waive this requirement.
  • Did I Submit the Tape with Appropriate Certifications and Technical Information? – You must submit any full-length depositions or clips you plan to use at trial to the court clerk. Any copies you submit to the clerk must include recording speed figures and other technical information helpful for playing the recording or making additional copies. The deposition officer must also attach a certification stating that the officer swore in or affirmed the witness and that the recording is a true record of the deponent’s testimony. The deponent would also need to sign the certification unless he or she consented to not review the recording.
  • Will I Need to Submit Edited Versions of the Depositions? – Courts may require the party to edit out objectionable material or flag them in the video file so that they can be suppressed when played at trial. Lawyers must also be prepared to submit both the original video file and any edited-down or marked-up files to the court clerk.

Scenarios Where Parties Can Use Pre-Trial Video Testimony in New York State Courts

Once you’ve recorded your deposition, you have many options available for using it at trial. Rule 202.15 permits parties to use taped depositions at trial in the same manner they would use stenographic transcripts, so long as the party introducing the video furnishes appropriate equipment and personnel for presenting it at trial. Rule 3117 describes how lawyers can use deposition recordings at trial, on the hearing of a motion or interlocutory proceeding, or in cases addressing the same subject matter.

Rule 3117 allows parties to introduce the recorded depositions of other adverse parties involved in an action, as well as relevant deposition clips that an adverse party decides not to show. It also allows lawyers to use deposition recordings to admit witness testimony that would be impossible or difficult to procure in-person. The CPLR permits parties to use deposition recordings to impeach the deponent’s in-trial testimony, or in situations where the deponent is deceased; located more than 100 miles away from the location of the hearing; unable to attend or testify due to age, health issues, or imprisonment; or are otherwise unavailable despite using diligent efforts to procure the witness through court orders and service of process. Judges may also accept recorded depositions in lieu of live testimony in exceptional circumstances. Finally, you can submit deposition recordings of licensed medical practitioners regardless of the practitioners’ ability to testify in person.

While the CPLR invites lawyers to use deposition recordings as evidence, you’ll still need the right recording platform to film and store your taped depositions in compliance with CPLR requirements. CaptureCast Legal offers the tools you’ll need to seamlessly record depositions and prepare them for trial. Contact us to see how we can help expand your trial capabilities.

Disclaimer: This article has been prepared for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any specific issue or problem.

7 Steps and Considerations Lawyers Should Explore When Preparing Deposition Videos in California

It’s well established that taped pre-trial depositions can be fair game as evidence in federal civil trials.  California, which hosts two of the nation’s largest metropolitan legal markets, is no different.  California’s Code of Civil Procedure (CCP) permits parties to use taped pre-trial depositions as evidence.  Nonetheless, you will face admissibility obstacles if you fail to follow CCP-compliant procedural and recording practices. Here are some important considerations you should explore as you approach your next deposition.

Steps You Will Need to Take When Conducting Your Deposition

If you are looking to tape a deposition and submit related footage into evidence, CCP § 2025.220 states that you’ll need to make specific disclosures first in your deposition notice. You may also need to serve your deposition notice on specific participants depending on the type of deponent you’re interviewing. Satisfying this requirement is straightforward, although overlooking these steps could jeopardize your ability to admit this footage into the record. When reviewing your deposition notice, ensure you’ve taken the following steps in addition to baseline notice requirements.

  • Record your intent to tape the deposition and use it at trial – In your deposition notice, you’ll need to include a statement expressing your intent to record the deposition by video and/or audio.  You’ll also need to serve this notice on the deponent and other interested parties.  If you intend to incorporate real-time court reporting tools, you must note your intent to do so and serve a copy of your notice on the deposition officer.
  • Record your intent to use expert witness and physician deposition footage at trial – If you’re planning to depose a practicing physician or expert witness, you have the right to submit footage of their non-objectionable testimony at trial even if that witness is available to testify at trial.  However, you must include a statement clarifying your intent to do this and ensure that the deposition officer you select to film the deposition is completely unaffiliated with any party, eligible to administer oaths, and has no financial interest in the matter’s outcome.
  • Transcribe the deposition—By default, a qualified stenographer must be present to record a taped deposition, so long as the stenographer used meets the qualifications described California’s Business and Professions CodeWhile the CCP permits parties to waive this requirement through unanimous agreement, parties who intend to use pre-trial deposition footage as evidence courts must submit a stenographic transcript prepared from the deposition footage.

After you’ve served your necessary notices, you’re ready to film your depositions.  There are still specific steps you’ll need to take before, during, and after the recording process to ensure your recordings are admissible. CCP § 2025.340 describe these steps, and instructs parties and their attorneys to consider the following:

  • Is your recording room setup compliant? —CCP § 2025.340(a) requires attorneys to ensure the area they use for recording any oral testimony to be suitably large, adequately lighted, and reasonably quiet.  Using non-intrusive recording equipment can help you meet this requirement.  If the individual or company acting as your deposition officer is offering you products and services to assist with the recording process, the officer must make these available to all other parties at a reasonable cost. Parties, however, cannot request the deponent’s personally-identifiable information or the officer’s notes on each participant’s demeanor and body language.
  • Who is operating your recording equipment?—Law firms can generally use their own employees to operate their recording equipment depositions, so long as those employees can competently set up, monitor, and operate your equipment.  If you’re deposing an expert witness, practicing physician, or consulting physician, this isn’t allowed.  You must instead let a neutral, nonaffiliated deposition officer who is authorized to administer oaths.  He or she must also have no financial interest in the matter’s outcome. Regardless of who ends up operating your video deposition recording equipment, you must ensure that you avoid using editing or sound recording techniques that end up manipulating or altering the participants’ appearance or demeanor.
  • Are you following proper on-camera procedures?—Each taped deposition you produce must begin with an oral or written statement disclosing the taping operator’s business address and name; the time, place, and date of the deposition; the case’s caption; the deponent’s name; any party-requested stipulations; and a statement disclosing whom the deposition is being conducted for. All attorneys will also need to identify themselves, and the officer will need to administer an oath to the deponent on camera.  If the deposition needs to be saved across multiple files, the officer will need to announce the conclusion and the beginning of each taped segment.  Once the deposition is complete, the officer will announce the conclusion of the deposition on camera and state any stipulations made by the parties’ lawyers regarding custody of the recording, exhibits, and other important matters.
  • Have you preserved your original files?—California courts permit parties to submit clips of taped depositions and may unilaterally require parties to edit out sections of any taped testimony those parties plan to show at trial.  Still, CCP § 2025.340(m) requires parties to preserve their original, unaltered deposition recordings.

When Can You Use Taped Deposition Testimony at Trial

Once you’re done recording, you’re ready to submit your deposition tapings into evidence.  CCP § 2025.620 permits parties to use taped depositions for any purpose in trials or other hearings related to a civil matter.  This includes using pre-trial deposition footage to impeach witnesses, contradict testimony, and include deponents who live more than 150 miles from the hearing.  Lawyers can also submit taped pre-trial deposition footage when specific deponents are dead, unavailable due to mental or health complications, precluded from testifying on privilege grounds, or inaccessible after reasonable attempts to procure their appearance through court orders and service of process.  Courts will also consider pre-trial deposition footage in exceptional circumstances or in the interests of justice.

While California courts allow parties to use pre-trial deposition recordings as evidence, you’ll still need capable and compliant tools to record these depositions properly. CaptureCast Legal’s recording platform includes easy-to-use tools that attorneys of all technical backgrounds need to prepare their pre-trial depositions for production.  Visit CaptureCastLegal.com to learn how our recording platform can enhance your trial and litigation capabilities.

Disclaimer: This article has been prepared for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any specific issue or problem.

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