My firm recently stenographically reported a two-week FINRA arbitration in Boston.  Typically, there is no court reporter present for FINRA arbitrations.  The official record is a simple cassette tape recorder that is turned on and off by one of the arbitrators.  Attorneys who wish to have their record will hire a court reporter to create a transcript and/or give out roughs each day.

We have reported FINRA arbitrations in the past, and I had never realized that, according to FINRA rules, the court reporter is not to offer the opposing counsel access to the transcript without permission from the firm that hires the court reporter.  This rule is absolutely contradictory to what I thought I knew for sure, if a court reporter is creating a record, each party has a right to that record and can buy a copy.

FINRA Rule 12606 Record of Proceedings states:  “The Customer Code applies to claims filed on or after April 16, 2007.  In addition, the list selection provisions of the Customer Code apply to previously filed claims in which a list of arbitrators must be generated after April 16, 2007; in these cases, however, the claim will continue to be governed by the remaining provisions of the old Code unless all parties agree to proceed under the new Code.

(a)   Tape, Digital, or Other Recording

(1)   Except as provided in paragraph (b), the Director will make a tape, digital, or other recording of every hearing.  The Director will provide a copy of the recording upon request for a nominal fee.

(2)   The panel may order the parties to provide a transcription of the recording.  If the panel orders a transcription, copies of the transcription must be provided to each arbitrator and each party.  The panel will determine which party or parties must pay the  cost of making the transcription and copies.

(3)   The recording is the official record of the proceeding, even if it is transcribed.

(b)   Stenographic Record

(1)    Any party may make a stenographic record of the proceedings.  Even if a stenographic record is made, the tape, digital, or other recording will be the official record of the proceeding, unless the panel determines otherwise.  If the panel determines in advance that the stenographic record is the official record, the Director will not record the hearing.

(2)   If the stenographic record is the official record of the proceeding, a copy must be provided to the Director, each arbitrator, and each other party.  The cost of making and copying the stenographic record will be borne by the party electing to make the stenographic record, unless the panel decides that one or more other parties should bear all or part of the costs.

In my particular situation, the opposing party to the firm that hired us asked to purchase a transcript subsequent to the arbitration.  My client informed me that he would not give us permission to sell/provide the transcript to the other side.  I asked my client to cite me language that would prevent me from selling the transcript, and he sent me FINRA Rule 12606.

My attorney’s interpretation of the rule is unless the Director deems the stenographic record the official record, we are only taking notes or providing work product for the party that hired us, and we are not allowed to provide the transcript to any other parties.

As court reporters reporting FINRA arbitrations, it is wise to know Rule 12606 and educate the attorneys.

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Court Reporters and Legal Videographers – On and Off the Record – Federal Rules v. CA CCP

Court reporters and legal videographers need to know when to be on and off the record.  The first thing the court reporter needs to know is what jurisdiction the deposition they are reporting falls under.  Is it a California state court case?  Is it a Federal district court case?  Is it a FINRA arbitration?

Under the California Code of Civil Procedure, CCP 2025.470, the court reporter may not go off the record without stipulation by all counsel unless a party or the deponent moves for a protective order.  Unless the court reporter hears the two words “protective order,” she/he must stay on the record.  I would suggest that the videographer would fall under the same rule.

Under Rule 30(d)(3) of the Federal Rules of Civil Procedure a litigant may suspend a deposition at any point for the purpose of filing a motion to terminate or limit the deposition on the grounds that it is being conducted in a manner that unreasonably annoys, embarrasses or oppresses the deponent or the litigant.  If such a suspension is sought, the deposition remains postponed until such time as the court issues an order.

I believe a best practice in a district court case or any deposition that falls under the Federal Rules is for the court reporter/videographer to stay on the record until all counsel agree to go off the record or the parties physically leave the deposition (and the parking lot).  The party or parties need to really leave, not just threaten to leave and walk out for a couple of minutes.  As a court reporter I wait for the remaining party to give me permission to pack up and leave.

As I have written in a previous blog, at a FINRA arbitration, the court reporter goes off and on the record at the request of whomever is hiring the court reporter unless the court reporter has been designated by the arbitration panel to be keeping the official record (rather than the tape recording being the official record).

When asked to go off the record, I get a verbal agreement by all parties, I put my hands up in the air, and say in a strong voice with a smile, “We are off the record.”  I want to always guarantee there was no misunderstanding and that no one can later say, “I never agreed to go off the record.  I wanted you to transcribe the part when John Smith called me a blankety-blank.”

Court reporters have a duty to protect the transcript and know when to be on or off the record.




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