The Dangers of the “Usual Stipulation” in Deposition Practice
Fall 2005
©2005 Los Angeles Lawyer magazine. Posted with permission.
Steven D. Archer is a partner in the Los Angeles office of Robins, Kaplan, Miller & Ciresi L.L.P. where he specializes in personal injury, medical malpractice, and mass tort litigation.
The seemingly endless and sometimes tedious questioning in the deposition is finally over. Counsel have asked all the questions they could think of, and in the general rush to conclude the proceeding, someone proposes that all parties agree to “the usual stipulation.” Beware: Agreeing to the usual stipulation without understanding its contours may lead to unexpected results when it becomes necessary to use the deposition later in the case.
Generally, depositions are useful for two intertwined reasons. They permit the discovery of information directly from witnesses, unfiltered by lawyers, and they create a record of people’s recollections that can be used as evidence in motions and at trial. Seldom will a deposition be used only to discover information. Much more frequently, the deposition will be used to support a motion, to provide a foundation for an expert’s opinion, or to cross-examine a witness.
Careful practitioners must understand exactly what the usual stipulation is and how it will be applied in a given case to avoid problems with the later review, correction, custody, use, and admissibility of the deposition transcript.
In deciding whether to enter into the usual stipulation, careful practitioners must consider the five Ws.
Who. Who is the audience? The rules of civil procedure vary depending on whether your case is pending in state or federal court. For instance, the Federal Rules of Civil Procedure permit a party or the deponent to request the opportunity to make changes to the deposition, in which case a signature is required. If neither the deponent nor a party requests an opportunity to make changes, no signature is required.1 Under the California Code of Civil Procedure, on the other hand, a deponent has 30 days or a different time agreed to by the parties within which to review the deposition, make any changes to it, and either sign it or refuse to sign it.2
Determine which set of procedural rules apply and review the applicable rules before the deposition begins. These differing rules control all aspects of the deposition process and, therefore, the things that you need or need not agree to if you are going to enter into the usual stipulation.
What. What are you being asked to agree to? Question whether you really understand the terms of the proposed stipulation. Frequently, the usual stipulation may be framed something like this:
I propose that we agree to relieve the reporter of his/her statutory duties under the code and that the original transcript be sent to [counsel or the witness], that the witness may then review the transcript, make any changes that he/she deems necessary, sign the transcript under penalty of perjury and return the transcript to [counsel] for safekeeping through trial. [Counsel] will advise all parties of any changes or corrections made to the transcript as well as the date on which the deponent signs the transcript. [Counsel] will agree to produce the original transcript upon reasonable request and will lodge the transcript with the court at the time of trial.
This proposal seems innocuous enough. A careful review of the reporter’s statutory duties, however, suggests that this proposal should be refused if the deposition is ever going to be used as evidence. For example, the reporter has a statutory duty to accurately transcribe the testimony and to thereafter certify that the deponent was duly sworn and that the transcript is a true record of the testimony given by the deponent.3 Waiving the reporter’s duties to do these things would make the transcript useless. Asking the attorney across the table whether you are being asked to waive these requirements will go far to demonstrate that opposing counsel does not really know what the statutory duties are, setting the groundwork for a more reasonable stipulation.
Similarly, while it might not happen in every case, depositions sometimes do not get transcribed. More frequently, original transcripts are lost or misplaced. The court reporter has a statutory duty to maintain the stenographic notes of depositions either on paper or electronic media for a period of “not less than eight years from the date of the deposition, where no original transcript is produced, and not less than one year from the date on which the transcript is produced.”4 Stipulating away this statutory duty may seem harmless in the abstract. However, when you cannot find the deposition transcript of the other side’s expert—and that expert is set to take the stand the following morning—the statutory duty becomes far less abstract.
When. When are the postdeposition actions to be taken? Although the California Code of Civil Procedure provides for a 30-day time frame within which the deponent may review and correct the original transcript, this time frame is not cast in stone. Absent good cause, it is a minimum, not a maximum. The careful practitioner must determine when the transcript will be used: In an upcoming motion? At another witness’s deposition? During trial? Based on that determination, the deposition may need to be transcribed on an expedited basis (within a day or two) so that the deponent can promptly review, correct, and sign the transcript, if necessary or requested.
Just as important as the deposing party’s need is the availability of the witness. If the witness is not available during the usual period, agreeing to the usual stipulation will effectively result in a waiver of the deponent’s opportunity to review and correct the transcript.
Professionalism dictates that the witness be given a reasonable opportunity to review the transcript, not a short deadline that requires postponement of or interference with a family vacation, for example. While this may seem petty, a witness’s prepaid vacation may hinder the prompt review of the deposition transcript within the time frame required to make the “opportunity” to read and review the transcript meaningless. On other occasions, it might be appropriate to stipulate to a waiver of the review and signature of the deposition, even if only for purposes of an upcoming motion.
Where. Where is the case pending? In addition to significant differences between the Federal Rules of Civil Procedure and the California Code of Civil Procedure, a careful practitioner also should be aware that court reporters follow different customary rules in state court actions depending on whether they are in Northern or Southern California. In Northern California, court reporters are loath to release possession, custody, and control of the original deposition transcript to counsel and usually will not agree to abide by the usual stipulation if it calls for their release of the original transcript. Rather, the Northern California procedure requires that the court reporter maintain custody of the transcript, advise all counsel and the deponent of its transcription, and make the original transcript available at the court reporter’s office for review, correction, and signature by the deponent within 30 days thereafter. The court reporter then maintains custody of the original transcript and lodges it directly with the court upon request by one or more parties. In Southern California, court reporters will usually agree to abide by a stipulation entered into between all counsel present at the deposition that calls for their release of the original transcript.
Why. Why are you entering into a stipulation? You do not have to agree to any stipulation at the close of a deposition, and you can always insist on the further handling of the original transcript by the court reporter in a manner consistent with the applicable code, which is consistent with Northern California practice. But just because it is the procedure set forth in the code does not mean that it is necessarily the most convenient procedure for all parties, counsel, and the deponent. Civility and convenience benefit all parties long after the completion of the deposition.
To accommodate these competing interests and after confirming the deponent’s availability to read and review the transcript, the following stipulation is a practical, convenient alternative to the usual stipulation:
I propose that we agree to relieve the reporter of his/her statutory duty to maintain custody of the original transcript. After it has been transcribed, the reporter shall send the original transcript [by UPS, FedEx, DHL, or the equivalent] to the witness at [witness’s office or residence address]. The witness shall have 30 days within which to read and review the transcript, make any changes that he/she deems appropriate and list any such changes on the errata page provided by the reporter. Upon completion of the review and listing the changes, if any, the witness shall then sign the transcript under penalty of perjury where indicated at the end of the transcript. The reporter shall provide a preposted and preaddressed envelope so that the witness may then send the reviewed, corrected, and executed original transcript and errata page to [counsel]. [Counsel] will maintain custody of the original executed transcript and will agree to produce it and lodge it with the court at the time of trial or for any motion for which it may be required upon reasonable request. [Counsel] will also advise all other counsel in writing of any changes, corrections, additions, or deletions made by the witness at the time of the review of the transcript and will provide all counsel with a copy of the errata and signature pages within 10 days of counsel’s receipt of the original executed transcript from the witness. Should the original executed transcript not be reviewed, corrected (if necessary), or signed by the witness within that time frame, or should the original executed transcript later become lost or otherwise unavailable, the parties agree that a certified copy may be used for all purposes, as if it were a duly executed and corrected original transcript.
This stipulation serves the client far better than the usual stipulation, which may leave to chance and your opponent’s good faith whether the deposition can be used at trial.
With all the day’s attention focused on the deposition questions and answers, there is no need to add the pressure of committing this stipulation to memory. Copies of this stipulation tucked into a briefcase and readily available at the deposition will do.
Understanding the who, what, when, where, and why of depositions will lead the careful practitioner to reject the usual stipulation in favor of a more precise, more user-friendly one that will avoid later problems with the handling, possession, lodging, and use of the deposition transcript.
Related Links