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Non-Stenographic Depositions

By Paul Wright

The most crucial part or process of a civil rights suit is the discovery phase. In many civil rights cases the defendants are government employees performing state functions and thus have sole control of the relevant evidence the plaintiff will need to prove his/her case. This is true of prison civil actions in particular. Many prisoner litigants conduct little or no discovery, essentially relying on whatever documents they may already possess or perhaps using interrogatories. Extensive and good discovery is essential to winning any case. The defendant's attorneys know this and their function is to hide or obscure the facts to protect their client, the pro se litigant's job is to uncover these facts and bring them to the court's attention.

Interrogatories are useful in cases where the information needed is policy numbers, specific dates, etc., because it allows the recipients to look through their records and verify the information, research answers to questions, etc. The main drawback is that it allows the defendants 30 days to mull over their responses with their counsel, eliminate contradictions if there are multiple defendants, etc. In addition, interrogatories can only be served on parties to the lawsuit, witnesses and others cannot be served with interrogatories.

Depositions, on the other hand, 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 the questioner can rephrase the question, documents can be used as exhibits and the witness can be examined concerning the exhibits. Attorneys rely extensively on depositions.

The problem that prisoner litigants face when they seek to conduct depositions is that because of their general indigence they are unable to afford a court reporter or stenographer to record and transcribe the deposition. This problem can be overcome relatively easily.

Fed.R.Civ.P. 30(b)(4) allows federal judges or magistrates to authorize non-stenographic depositions in civil cases. The court's role should be limited to ensuring that the record produced will be an accurate one. See: Colonial Times v. Gasch, 509 F.2d 517 (DC Cir. 1975).

The means of ensuring an accurate record that have been approved by the courts in the past include having a public notary swear the witness under oath, the deposition is recorded by two tape recorders (one for the defendant, one for the plaintiff), labelling the tapes and breaking the plastic tabs to ensure they are not recorded over. The courts that have approved these methods include: Jones v. Evans, 544 F. Supp 769 (ND GA 1982); Champagne v. Hygrade Food Products, Inc., 79 FRD 671 (ED WA 1978); Lucas v. Curran, 62 FRD 336 (ED PA 1974); Wescott v. Newman, 55 FRD 257 (DC NE 1972); and Kallen v. Nexus Corporation, 54 FRD 610 (ND IL 1972). FRD stands for Federal Rules and Decisions, it is a series of books that few prison law libraries have; however, they can usually be special ordered from state law libraries.

In the event the deponents are located somewhere else (i.e., you have been transferred to a different prison, the deponents are located in the state capitol, etc.), that is not a problem. Fed.R.Civ.P. 30(b)(7) allows for the use of telephonic depositions. This permits the person conducting the deposition to be at one location, hundreds or thousands of miles away from where the deponent is actually located. For prisoners moved to different prisons or out of state it may be the only way to conduct a deposition. See: Coyne v. Houss, 584 F. Supp 1105 (ED NY 1984).

This writer has conducted about two dozen non-stenographic depositions over the years, most of them telephonically. Overall, the process works pretty well. The important thing is that economic limitations are not a barrier to conducting the depositions. These depositions have proven crucial in a number of cases.

The downside to doing non-stenographic depositions is that in order to use them in court it is necessary to transcribe the deposition. It takes me about 8 to 10 hours to transcribe a 90 minute deposition and another few hours to type it up. Obviously this will depend on each individuals transcribing and typing skills, for some it will be easier, for others more difficult. It is very tedious and tiring. It also provides an incentive to keep questions brief and to the point.

Non-stenographic depositions are not for everyone. They take a lot of work to prepare the questions before the deposition, prepare your list of exhibits for the witness and then transcribing the results later. A 90 minute taped deposition translates into an average of 50 double spaced typed pages. For cases involving questions of motive and intent, depositions are ideal. Done right, non-stenographic depositions are an inexpensive way to conduct vital discovery that would not otherwise be possible.

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