We filed suit against a restaurant franchisee. The defense lawyer filed a Motion For Protective Order And Objection To Plaintiff’s Counsel Acting As Videographer At Depositions. We filed a response which can be seen below.
A notice of hearing was filed by the Defendant and their motion was set. The issue was resolved prior to a hearing.
IN THE CIRCUIT COURT OF THE
11TH JUDICIAL CIRCUIT IN AND
FOR MIAMI-DADE COUNTY,
FLORIDA
CASE NUMBER:
,
Plaintiff,
vs.
xxxx RESTAURANTS, LLC,
Defendant.
___________________________________________/
RESPONSE TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER AND OBJECTION TO PLAINTIFF’S COUNSEL ACTING AS VIDEOGRAPHER AT DEPOSITIONS
COMES NOW, the Plaintiff, CLIENT, by and through his undersigned attorney, and files this, his RESPONSE TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER AND OBJECTION TO PLAINTIFF’S COUNSEL OR his employees acting as videographer at depositions of the Defendant and/or its representatives, and its support thereof, states the following:
1. The depositions which opposing counsel references have been noticed to be taken before a court reporter in addition to being taken via videotape. Undersigned counsel, in an effort to avoid this hearing, sent an email dated March 19, 2008 to defense counsel wherein the undersigned will stipulate, although not required by law, to having a non-employee [of the undersigned (uncertified)] person videotape the depositions using undersigned’s computer webcam or a laptop computer. The term certified, in relation to videotapes depositions, does not exist in the Florida Rules of Civil Procedure. (Discussed infra Paragraph 3).
The undersigned has also posed the question to defense counsel, “Do you object to the depositions being videotaped by a non-employee (uncertified) person who will videotape the depositions using a laptop and webcam? The undersigned to date, has not heard a response from opposing counsel, albeit, it has been less than a day since the questions were asked. In an effort to avoid this hearing, if defense counsel withdraws its motion the undersigned will also agree that should defense counsel prove that there is any conflict in testimony between the video and transcript; the transcript testimony will supersede that of the video.
2. Defense counsel is incorrect in asserting that Plaintiff’s counsel and/or his employees are disqualified from acting as videographer(s) at these depositions by statute. The undersigned is not aware of any statute that discusses this. Undersigned counsel believes that Plaintiff’s counsel and/or his employees are permitted to act as videographer(s) at these depositions based on the Florida Rules of Civil Procedure. Florida Rule 1.310(b)(4) states in pertinent part:
“any deposition may be recorded by videotape without leave of court or stipulation of the parties, provided the deposition is taken in accordance with the subdivision. Undersigned,
in its notice of taking deposition (attached) has complied with Rule 1.310(b)(4).
Plaintiff’s counsel or his employees acting as videographer does not raise questions of conflict of interest such as neutrality in the preparation of videotapes, the duplication thereof, and the chain of custody of the videotapes. Florida rule 1.310(b)(4)(d) states that the attorney for the party requesting the videotaping of the deposition shall take custody of and be responsible for the safeguarding of the videotape.
Therefore, there is no chain of custody problem. Any discrepancies with the preparation of the videotapes may be addressed by cross referencing it with the deposition transcript. The deponent will have the opportunity to read the transcript after it is typed. The undersigned will give opposing counsel a copy, free of charge although not required by the rules), of the videotaped deposition at the end of the deposition. Against the undersigned’s wishes, should the Defendant’s motion be denied, the undersigned (if required by the judge) will even stipulate that should there be any conflict in testimony between the video and transcript; the transcript will supersede the video.
There is no difference between duplicating the videotaped copy that the undersigned attorney will take and duplicating a copy which is not taken by the undersigned or one of his employees. Although the undersigned believes that there are no questions of conflict of interest, such as neutrality in the preparation of videotapes, the duplication thereof, and the chain of custody of the videotapes, even if there were said questions, they are outweighed by the great procedural significance in the efficient and economic administration of justice.
In Colonial Times, Inc. v. Gasch, 509 F.2d 517, 522 (D.C.C. 1975), for example, the court analyzed whether an independent operator was required to preserve trustworthiness and accuracy in light of one of the purposes for allowing non-stenographic recording, namely, cost reduction. The court would not require an independent operator unless there were no other alternatives to guarantee trustworthiness. In Ott, one of the plaintiff’s attorneys operated the video camera. 169 F.R.D. at 381.
The district court agreed that Rule 28 did not prohibit the attorney from doing so, id., and absent any indication of irregularities in the recording, the court would not strike those depositions for which counsel was the videographer. 169 F.R.D. at 382. In Rice’s Toyota World, Inc. v. Southeast Toyota Distributors, Inc., 114 F.R.D. 647, 651 (M.D.N.C. 1987), the court similarly ruled that counsel’s operation of the camera was not barred by Rule 28, explaining in part that a stenographer is different from someone making a “stationary video recording,” who does not engage in interpretation of what people say during the deposition.
Furthermore, when Rule 1.300 states “shall not be taken before,” this does not imply that the above (e.g. relative, employee, etc.) shall not be present in the room. Thus, the undersigned does not see a problem with his, or one of his employees being the operator in this case.
3. The Florida Rules of Civil Procedure, Florida case law, or Florida Statutes do not mention the words “Certified Legal Video Specialist” or any combination of those words. The cost for a “professional” (which is not defined in the Rules or case law) videographer is potentially cost prohibitive for the plaintiff. The undersigned has investigated the cost of a videographer at it is generally $225 for the first hour, and up to $125 for each additional hour. For the first (4) depositions in this case, which are referenced by opposing counsel, the cost of hiring a videotaping company could easily run upwards of two thousand dollars ($2,000.00).
This is not economically feasible for the plaintiff, as he already must bear the costs of a court reporter which may also run up to a similar amount ($2,000.00). Should Defendant’s motion be denied, the undersigned is happy to provide a copy of the video to opposing counsel free of charge. Opposing counsel is within its right to hire a “Certified Legal Video Specialist” (which is a term not used in Florida law) if opposing counsel will be the cost of the same.
4. In the instant case, the operator of the videotape is not the person before whom the deposition “shall be taken before.” Rather, it is the court reporter. Rule 1.300(d) states:
“no deposition shall be taken before a person who is a relative, employee, attorney, or
counsel of any of the parties, is a relative or employee of any of the parties’ attorney or
counsel, or is financially interested in the action.”
“Taken before,” is also used in Rule 1.300(a) which states:
Persons Authorized. Depositions may be taken before any notary public or judicial
officer or before any officer authorized by the statutes of Florida to take
acknowledgments or proof of executions of deeds or by any person appointed by
the court in which the action is pending.
The officer before whom a deposition is taken is the person who administers the oath to the witness and who records the witness’s testimony, either personally or by someone under the direction and in the presence of the officer. See Rule 1.130(c), Fla.R.Civ.P. which states in pertinent part:
The officer before whom the deposition is to be taken shall put the witness on oath
and shall personally, or by someone acting under the officer’s direction and in the
officer’s presence, record the testimony of the witness….
Defense counsel mistakenly believes that the operator of the videotape is a person disqualified by 1.300(d)(4). For the operator of the video to qualify as an officer, according to Rule 1.300(a), he would need to be the person who on administers the oath and shall personally, or by someone acting under the officer’s direction and in the officer’s presence, record the testimony of the witness….”).
The undersigned believes that even if a “Certified Legal Video Specialist” (as defense counsel uses this term) were to exist, not all of them would be a notary public, whereas every court reporter is presumptively a notary public. In our case, as in every case where a court reporter is taking testimony, the operator is not under the direction of the court reporter, because the court reporter is the officer who shall administer the oath to the witness and who will record the witness’s testimony. Rule 1.310 does not use the words operator and officer interchangeably.
This deposition is not being “taken” before the operator of the video, it is being taken before the court reporter, who will administer the oath to the witness and who will record the witness’s testimony.
Several other states such as, but not limited to, Pennsylvania, Washington (Eastern District), West Virginia (Northern District), California, and New York (where opposing counsel is licensed) specifically authorize an attorney’s employee to be the operator for a video deposition. See California Code of Civil Procedure 2025.310-2025.340 (attached) Pa.R.C.P. No. 4017.1. (Attached) 22 NYCRR 202.15 [c] (attached).
Pennsylvania’s Rule of Civil Procedure No. 4017.1 (c) No deposition shall be taken before a person who is a relative, employee or attorney of any of the parties, or who is a relative or employee of such attorney, or who is financially interested in the action. New York’s (where opposing counsel is licensed per the Florida bar website) rules permit the video operator to be an employee of the attorney taking the deposition: Specifically, there is no prohibition against plaintiff’s counsel, as an employee of the firm, acting as the videotape operator ( 22 NYCRR 202.15 [c]).
This amounts to little more than turning on and off the camera. That is, the sole function of the operator is to announce the start and stop of the video camera which is operated by a remote control and remains fixed throughout the proceeding (22 NYCRR 202.15[d]). Id. at 335. However, while the video operator may be the attorney or his employee, the deposition must nonetheless occur in the presence of an independent “officer…authorized by Statute.” 22 NYCRR Judiciary 202.15[d]. New York CPLR Section 3113(a), as well as Florida Rule 1.300(a), defines the persons before whom depositions may be taken.
For depositions taken in New York, as well as in Florida, any person authorized to administer oaths within New York (i.e. notary public, certain judges and municipal officers) may serve as a deposition “officer.” In New York, Florida, Pennsylvania and California, attorneys, their employees, parties and those persons having an interest in the litigation are specifically excluded from the list of permissible officers. However, all of these states allow, as mentioned above, an attorney’s employee to videotape a deposition.
The undersigned believes that Florida law follows the same logic as New York, California, and Pennsylvania and potentially other states as well. All the aforementioned states, including Florida, do not use the words officer and operator interchangeably. If Florida did not want an attorney, or one of his employees, to be an operator of the videotape, it could have expressly excluded the same in Rule 1.310(b)(4).
The same applies to the other aforementioned states. Florida as well as New York, would have added the words in Rule 1.310(b)(4)(a) shall be taken before the “operator” to if an attorney or his employee was disqualified or excluded to videotape the deposition. Florida, as other aforementioned states could have also added the word operator to Rule 1.300(d) as one of the persons who was disqualified.
5. In response to paragraph #5 in opposing counsel’s Motion for protective order, National Court Reporters Association (“NCRA”) (Advisory Opinion No.44), which is not Florida law, addresses the question “Should a Court Reporter Act as Both the Verbatim Reporter and the Videographer for the Same Proceeding?” That Advisory Opinion is concerned with whether a court reporter, not an attorney or one of his employees, not entering into a business relationship that “comprises the court reporter’s ability to produce an accurate record.” The record is referring to the stenographic record, not the videotapes record.
This can be deduced when the discussion of that opinion says “The paramount duty of a reporter is to produce an accurate record. For a reporter to agree to perform another duty would take away from the reporter’s ability to focus on reporting the proceeding. This is not what is at issue. There will be a court reporter at said depositions referenced in opposing counsel’s paragraph #1. That court reporter will not be videographer. The NCRA has an interest in making sure that court reporters do not lose business to competing video operators. Some states allow videographers to take testimony in place of a court reporter.
6. The issue is not whether a court reporter cannot properly and ethically serve in a dual role as both the stenographer and videographer. The undersigned appreciates defense counsel’s concern as to whether the undersigned will be able to act as a videographer and depose its witnesses. However, the undersigned believes that he, or one of his employees, is capable of pressing a start and stop button. Defense counsel states there is a statutory mandate disqualifying both counsel and his employees from acting in such a capacity. Defense counsel does not cite any statutes in support of this.
7. Plaintiff has been “required” to file the within Response to opposing counsel’s motion, notwithstanding numerous attempts with Defendant’s counsel to simply agree to the use of myself or an employee of mine as a videographer. Plaintiff has also agreed to stipulating to having a person who is a “uncertified” (as defendant uses that term) non-employee of mine be the operator so long as they may use my webcam (which records video and audio just as a video camera).
WHEREFORE, the Plaintiff respectfully requests that this Honorable Court, enter an Order:
•a. Denying defendants motion for protective order and:
(in order of decreasing request)
1. Enter an order allowing the undersigned, or one of his employees, to act (at his option) as the operator of videotape for any depositions in this case that he wishes to take via video, or in the alternative;
2. Enter an order allowing a person who is a “uncertified” (as defendant uses that term) non-employee of the undersigned be the operator so long as the undersigned’s (which records video and audio just like a video camera) webcam or a laptop computer is used, for any depositions in this case that the undersigned wishes to take via video, or in the alternative;
3. Enter an order allowing a “uncertified” (as defendant uses that term) non-employee of the undersigned be the operator to be the operator of the video, or in the alternative;
b. requiring Defendant to pay the fees and costs incurred by Plaintiff in relation to the preparation and defending of the within Motion; and
c. granting such other and further relief as this Court may deem just and proper under the circumstances; and
d. Require the Defendants and its employees and representatives to appear at their depositions scheduled for April 8, 9, and 10 and any other dates previously set even if the court does not allow videotaping as described in Numbers 1-3 above.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed ____________ to___________________ Fort Lauderdale, Florida.
JUSTIN ZIEGLER, ESQ.
Justin Ziegler, P.L.
Counsel for the plaintiff
Miami, Florida
T: 661-9977
______________________________
By: JUSTIN ZIEGLER