| by Heather Duncan, Esq.
In response to multiple inquiries from our readers, this month's post provides a basic review of the rules for obtaining third party trial and deposition transcripts from the court reporter or court reporting agency.
When dealing with confidentiality issues and trial transcripts it is best to throw out everything you have been taught about deposition transcripts. As a general rule, anyone may view or obtain a transcript of trial testimony.
Testimony in a public trial is part of the official court record, which is a public record. Absent a specific court order sealing the record, the California Public Records Act and the California Information Practices Act ensure the public's right to access all public records. The local rules in each jurisdiction give the specifics for viewing or obtaining copies of official court records, including transcripts.
If all parties and the deponent have stipulated, or there has been a court order, a certified transcript may be provided to anyone pursuant to the terms outlined in the order or stipulation. This is true under both California and federal law.
As provided more fully in our June 2015 Network News, for cases filed in California state courts, absent a court order or stipulation of all parties and the deponent, a request for a copy of a deposition transcript made by a non-party requires a 30-day notice, allowing parties the time to seek a protective order under CCP 2025.570 (b). If a protective order is not served on the deposition officer, the third party is entitled to purchase a certified copy of the transcript.
The Federal Rules of Civil Procedure do not specifically address the sale of deposition transcripts to third parties absent a stipulation or court order. However, The National Court Reporters Association ("NCRA") states "a reporting firm may not provide to a nonparty the transcripts or any information contained therein." See NCRA Advisory Opinion 24 (1995) (revised March 2014).
A third party wanting a federal deposition transcript should attempt to obtain a stipulation of all parties and the deponent or request an order from the court.
Under California case law, a certified deposition transcript may not be obtained from the court reporter or court reporting agency via a civil subpoena requesting "business records." Business records pertain to the conduct of one's business, not its work product. See, Urban Pacific Equities Corp. v. Superior Court (1997), 59 Cal.App.4th 688 [reporter's transcript is a work product of and not a business record of reporter]