The Lapsed Commission and the Instructed Witness
You are a freelance certified shorthand reporter and a notary public, engaged to report the deposition of a hospital risk manager in a malpractice case. The deposition is being taken in a conference room at the hospital in Sangamon County. While setting up, you discover that your notary commission lapsed twelve days ago and that the renewal application is still pending. Plaintiff's counsel begins by asking about a 'peer review committee meeting.' Defense counsel says, 'I instruct the witness not to answer on the basis of the Medical Studies Act, 735 ILCS 5/8-2101.' Plaintiff's counsel responds, 'Fine - we're going off the record,' and then keeps questioning the witness while you continue writing. Later the witness says she needs to review her notes before she can answer a question about a specific chart entry. At the end of the session, defense counsel tells the witness to sign the errata sheet and 'just change the answer to say you don't recall.' Nothing has been placed off the record by agreement, and no judge is present.
1. Your notary commission has lapsed. Can you proceed, and what should you do?
Read the worked answer
The oath is not a formality: a deposition taken before an officer not authorized to administer oaths is vulnerable to challenge. Disclose the lapse to both counsel immediately, before any question is asked, and do not backdate or sign a notarial certificate you are no longer commissioned to give.
Then determine your authority. Illinois regulates certified shorthand reporters, and your reporter credential may independently authorize you to administer oaths in the course of your duties as the officer before whom a deposition is taken; if it does, you may proceed as the officer and note the basis. If it does not, or if you cannot verify it on the spot, the options are to adjourn briefly and have a commissioned notary or another authorized officer administer the oath on the record, or to reschedule. Do not simply skip the oath and hope no one notices - the defect surfaces at the worst possible moment, often on a motion to suppress or strike.
Whatever you choose, make a record of the oath, the time and the officer's identity, and follow up in writing to counsel so the file reflects what happened.
2. How do you handle the instruction not to answer and the 'off the record' continued questioning?
Read the worked answer
The instruction not to answer. Suspend that question, but record everything: the question, the instruction, the stated ground and any response. A defending attorney may instruct a witness not to answer in limited circumstances; the reporter does not rule on whether the privilege applies. You do not strike the question, and you do not refuse to record the colloquy. Note that the question is pending, and if the parties later seek a ruling, the record shows exactly what was asked and when it was cut off. Whether the Medical Studies Act protects a peer review meeting is for a court, not the reporter.
The 'off the record' remark. One party cannot unilaterally take a deposition off the record. When plaintiff's counsel says 'going off the record' and keeps asking questions, state clearly, on the record, that the record is continuing - for example, 'For the record, the deposition remains on the record.' If counsel insists on going off the record, confirm it with both sides, note the time and the agreement, and stop transcribing. Questions asked during an ambiguous status are the kind of gap that produces dueling affidavits; a single clarifying sentence prevents it.
3. What is your role when the witness reviews her notes and when counsel directs an errata change?
Read the worked answer
Reviewing notes. A witness may refresh her recollection from a document, but the reporter's job is to record the request, the document used, any objection and any ruling. If the notes are used to refresh, opposing counsel may be entitled to inspect them under the rules governing depositions; note the request and the response, and mark the document if it is going to be used as an exhibit. Do not hand over or withhold anything yourself - that is for counsel, and your record should show who did what.
The errata instruction. The witness may review the transcript and make changes, with the reasons stated, under the rules governing depositions; that is the witness's decision, and the changes and reasons are attached to the deposition. What you must not do is participate in reshaping testimony, alter the transcript, or sign a certificate that misstates what occurred. The instruction 'just change the answer to say you don't recall' was made in your presence; if it was on the record, it is preserved. If it was made off the record, you should ask counsel to put the instruction on the record, and if they decline, make a contemporaneous written note of the time and substance. Never edit the transcript to accommodate either side.