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Non-Stenographic Depositions

By Paul Wright

The most crucial part or process of a civil rights suit is the discovery process. In prison suits the defendants, i.e. prison officials, have almost sole possession of the evidence that you will need to prove your claims. Many prisoners do not do much or any discovery, essentially relying on what documents they have already or may be on interrogatories. Extensive and good discovery is essential to win any case. The attorney general's job is to hide and obscure the facts to protect their client, the Pro Se litigant's job is to uncover these facts and bring them to the court.

Interrogatories are useful in cases where the information needed is policy numbers, specific dates, etc., as it gives the defendant a chance to look through their records and verify the information. The drawback is it gives the defendants 30 days to go over the questions, get their answers in order, etc. Interrogatories can only be served on parties to the lawsuit.

Depositions are used to verbally question witnesses and parties in lawsuits. The advantages are obvious: the witness has to answer the questions then and there, in the event of an evasive reply you can rephrase your question and you can introduce documents as exhibits and question about those. Attorneys rely extensively on depositions.

The problem prisoner litigants have faced with depositions is that due to indigence, we usually cannot afford to hire a professional typist or stenographer to record and transcribe a deposition.

The Fed.R.Civ.P.(b)(4) allows the judge or magistrate to authorize non-stenographic depositions in civil cases. The Courts role should be limited to ensuring that the record produced will be an accurate one. See: Colonial Times vs Gasch, 509 F.2d 517 (DC Cir. 1975).

The means of ensuring an accurate record that I have used (and has been approved by Judges and Magistrates in the U.S. District Courts in both Seattle and Spokane) are having a prison notary swear the witness under oath, the deposition recorded by two tape recorders (one tape for the AG, one for you), labeling the tapes and breaking the plastic tabs after the deposition so the tapes aren't recorded over. Federal courts have found these means acceptable in: Jones vs. Evans, 544 F.Supp 769 (ND GA 1982); Champagne vs. Hygrade Food Products, Inc., 79 FRD 671 (ED WA 1978); Lucas vs. Curran, 62 FRD 336 (ED PA 1974); Wescott vs. Neeman, 55 FRD 257 (DC NE 1972); and Kallen vs. Nexus Corporation, 54 FRD 610 (ND II 1972). FRD stands for Federal Rules and Decisions, few prison law libraries have this series, I had to order them from the state law library.

In the event you have been moved to another prison away from your defendants and witnesses never fear! Fed.R.Civ.P 30 (b) (7) allows the use of telephonic depositions. This means you can conduct your deposition via telephone with you at one prison, your witnesses at another. While it may sound awkward it really isn't. For prisoners moved out of state or to other prisons this is probably the only way to do depositions. See: Coyne vs. Houss, 584 F.Supp 1105 (ED NY 1984).

I've done nearly a dozen non-stenographic depositions in the last few months, most of them telephonically. Overall, I was pretty pleased with the process and the results. An obvious problem is the likelihood, or possibility that the AG may coach the witness, pass notes to the witness, etc., but there seems to be little way to get around that.

The downside to doing non-stenographic depositions is that in order to use it as evidence in court you have to transcribe it. It takes me about 8 to 10 hours to transcribe one 90-minute tape and another five hours or so to type it out. It is very tedious and tiring work. This gives you an incentive to keep your questions short and to the point and not to ramble on at length.

Non-stenographic depositions are not for everyone. They take a lot of work to prepare your questions before, and transcribe the result afterwards. A 90-minute deposition comes out to about 50 typed, double spaced pages. If you're not sure of yourself, stick to what you know. Anyone who would like more information or has any questions about doing this type of deposition should feel free to write to me.

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