The Speaking Objection and the Off-Record Huddle
At a deposition in a Hawaii personal injury case, plaintiff's counsel asks the defendant about a prior fall at the same store. Defense counsel says, 'Objection, irrelevant, and I instruct the witness not to answer. Also, let's go off the record so I can confer with my client.' Plaintiff's counsel responds, 'I object to going off the record; the instruction is improper.' The witness has not answered. Defense counsel says, 'Off the record,' and begins whispering with the witness. Your recorder is still running. After the huddle, defense counsel tells you, 'Do not transcribe that conference; it was private.' The deposition is being taken under the Hawaii Rules of Civil Procedure. No judge is present, and the parties have not stipulated to a protective order or to going off the record. You are the only neutral officer present.
1. What must appear in the record at the moment of the objection and the instruction not to answer?
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The record must include the question, the objection, the instruction not to answer, opposing counsel's response, defense counsel's 'off the record' statement, and any answer or non-answer by the witness. A court reporter does not rule on objections and should not characterize the objection as 'improper' or 'sustained' in the transcript; record the words spoken. Under the Hawaii Rules of Civil Procedure, deposition objections are noted on the record and the examination may proceed subject to the objection, except in limited circumstances. The instruction not to answer is itself significant and must be preserved verbatim, because a court may later decide whether it was proper. Do not summarize the exchange as a 'speaking objection' unless the speaker used that phrase. Keep the question and answer sequence clear, identify speakers, and note the time of the instruction if your format uses timestamps.
2. May you stop recording when defense counsel says 'off the record'? What do you do with the whispered conference?
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No. A deposition goes off the record only when the parties agree, when the officer is directed by the court, or under the applicable rules. Plaintiff's counsel expressly objected, so there is no agreement. Continue recording and note the request and the objection. The whispered conference is more delicate: if your microphone picks it up, it is part of the audio record, and you should not selectively delete it. If the conference was truly not recorded and counsel later claims privilege, the proper course is for counsel to seek a protective order or a court ruling; the reporter does not make that call. Do not turn off the recorder merely because one attorney says 'off the record' over another's objection. If the huddle becomes a lengthy interruption, note the time and state on the record when you resumed.
3. Defense counsel demands that you delete the conference. How do you respond, and what options do the parties have?
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Refuse to delete or omit the conference. Explain that you are the neutral custodian of the record, that you cannot alter a transcript at one party's request, and that the original audio and notes will be preserved. Offer to provide a certificate and to follow any court order, for example a protective order directing that specified material be sealed. The parties' remedy is to ask the court to strike, seal, or protect the material, not to have the reporter edit it privately. Do not contact the judge ex parte or give legal advice. If defense counsel persists, note the demand in your own log and, if necessary, suspend the deposition only long enough to seek a ruling under the rules. Preserve the original recording; do not overwrite it or create a 'cleaned' version as the official record.