When you’re taking a deposition and you announce, “We’re off the record,” you’ll notice that your court reporter will probably look at other counsel in the room to basically agree that he/she can, indeed, go off the record and stop writing at that point. You might think that since you’re the one taking the deposition and also paying for the original and one copy of the deposition, that YOU have the right to stop the reporting at any time and go off the record. In all actuality, the court reporter is required to get agreement by all counsel attending the deposition before stopping writing and going off the record.
Though it is true that usually one side of a case or the other originally calls the reporting firm and sets up the deposition, once the court reporter is in the room reporting the proceedings, he/she is not there on behalf of anyone. We are impartial in the proceedings. The court reporter is there to be the guardian of the record, to make a complete and accurate record, and that often includes staying on the record when not everyone agrees to go off.
If there’s a situation where one attorney says, “This is off the record,” but another attorney says, “No, we’re still on the record,” then the court reporter will continue writing everything that is said until both or all attorneys agree to go off the record. A judge can order a portion of the record to be redacted at a later time, but if the reporter had stopped writing and the parties later determined that the particular portion of the proceedings SHOULD have remained on the record, there would be no record.
On the other hand, when all counsel agree to an off-the-record discussion, the reporter will put in a short parenthetical indicating that there were proceedings held off the record and he/she will completely take their hands off the keyboard so everyone knows that a record is not being taken at that time. Once the parties advise the court reporter to go back on the record, he or she will begin writing again until told otherwise.
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