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.

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