Two primary reasons for deposing a party or witness are to learn more about the case and lock in someone’s testimony for use at trial. Clients and counsel carefully plan and prepare for the substance of the deposition, but for years, little thought was given to the selection of the court reporter. That changed in the past decade as court reporting firms approached institutions and insurers with an offer of lower fees in consideration for a higher volume of business. In many jurisdictions, such arrangements have worked without difficulty, but now, in Delaware’s state courts, the transcript prepared by your “preferred” court reporter may not be admissible at trial. Instead, the admissibility of your transcript depends on the court reporter’s credentials and terms of engagement.
Late in 2001, the Delaware Supreme Court issued Administrative Directive No. 132, a new rule that governs private parties’ retention of court reporters. It establishes certain minimum qualifications for court reporters. It also prohibits common financial arrangements between court reporters and sophisticated litigants like insurance companies and other large businesses. Specifically, Directive 132 prohibits litigants and insurers who pay defense costs from entering into contracts with court reporters whereby the litigant or insurance company receives discounted pricing or special services (such as expedited processing of transcripts) in exchange for an agreement to engage a particular court reporter or reporting agency exclusively.
This new rule is no toothless tiger. Transcripts of testimony taken in violation of the directive are inadmissible in any state court proceeding. The directive applies to all proceedings relating to cases in the Delaware state courts, such as depositions, and to all administrative proceedings (such as labor board or worker’s compensation hearings) where an appeal may be taken to a Delaware court. Although the Directive permits exceptions to be made upon a finding of “special circumstances,” the Supreme Court gave no guidance on what circumstances might be sufficiently “special” so as to excuse noncompliance.
The Delaware Supreme Court’s declared purpose in issuing this directive is to ensure standard levels of skill, competency and ethics for court reporting in Delaware. Concern over maintaining the impartiality of court reporters is behind the new rules governing financial arrangements. The Supreme Court’s directive reportedly came in response to intense lobbying by some local court reporting agencies. They raised concern that special pricing agreements with parties or insurers could create an appearance of impropriety (if not actually influence the deposition).
The directive creates a new Board on Certified Court Reporters that is authorized to regulate and certify all court reporters in Delaware. Similarly, the Board is charged with disciplinary oversight of all court reporters certified under its authority. Under the Supreme Court’s direction and subject to its approval, the Board is developing and will implement a certification program and code of conduct for certified court reporters and disciplinary procedures to enforce the rules. Procedures have also been developed to “grandfather in” qualified court reporters presently working in Delaware, who will receive credentials issued by the Board.
This directive addresses court reporting and the use of transcripts only within and before the courts of the State of Delaware. Actions in the U.S. District Court for Delaware are not affected by the directive. Although similar rules, regulations, or statutes exist in 26 other states, and while the National Court Reporters Association reports that efforts for similar legislation are underway in New Jersey, Pennsylvania, and New York, to date, those three states still enjoy a free market.