The Instruction Not to Answer in a Jefferson County Deposition
In a Jefferson Circuit Court wrongful-termination case, you are the court reporter at the deposition of the defendant's former HR director. Plaintiff's counsel asks, 'Did Ms. Alvarez tell you that she was told to destroy the file?' Defense counsel says, 'Objection-privileged. Instruct the witness not to answer.' Plaintiff's counsel turns to you and says, 'Strike that instruction and make him answer; the privilege is bogus.' The witness has not answered. The discovery deadline is 14 days away, and defense counsel says she will suspend the deposition and call the judge. No protective order has been entered. The deposition is being recorded by stenotype and audio. You have already sworn the witness. The conference is off the record for a moment, and both lawyers ask you what happens next.
1. What do you record after plaintiff's counsel says 'Strike that instruction,' and do you strike it? Explain.
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Record the question, the objection, the instruction not to answer, and the fact that the witness did not answer. Do not strike the instruction. A court reporter records; the reporter does not rule on objections or erase words from the record. If you say anything, say on the record: 'Counsel, I will record the question and the instruction; I cannot strike it. If you want a ruling, we need the judge.' Then note the time. The instruction is itself part of the deposition and may be relevant to a motion to compel or for sanctions. Striking it would destroy the evidence of what was said and could mislead the court about why the witness did not answer. Do not characterize the privilege as 'bogus' or otherwise editorialize; the transcript should contain the words spoken, not your view of their merit. If the witness begins to answer, record the answer; if counsel repeats the instruction, record that too. Keep the audio running unless the parties stipulate to go off the record.
2. Defense counsel says she will suspend the deposition and call the judge. Can you suspend, and what should you do?
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You should not suspend unilaterally. The reporter's role is to preserve the record, not to decide whether the deposition must stop. If counsel announces a suspension, record the announcement, the time, and the reason. If the parties agree to recess, note the stipulation. If one side wants to continue and the other leaves, record the request to continue and the departure. You may recess briefly to allow counsel to contact the court, but do not place an ex parte call to the judge yourself or take sides. A suspension is different from an adjournment by agreement; if there is no agreement, the deposition can continue as to other subjects unless the court orders otherwise. At the end, the transcript should show the unresolved instruction and any suspended questions so the court can rule. If a lawyer instructs a witness not to answer on privilege grounds, the questioner may seek a ruling; your job is to make that record complete. Later, if the court orders the witness to answer, a resumed deposition can occur.
3. How should the transcript and certificate handle the instruction and the off-record conference?
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Include the instruction verbatim and a neutral note that a conference occurred off the record, with start and end times if known. Do not summarize the off-record discussion unless the parties stipulate on the record to its content. If they later put a stipulation on the record, transcribe it. The certificate should certify the transcript as a true record of the deposition proceedings, without opining on the validity of the privilege or the propriety of counsel's conduct. If you have a note about a suspension request, include it in the transcript or an attached reporter's note, depending on local practice. The certificate should not say the deposition was 'completed' if it was suspended; say what occurred. This preserves the record for a motion to compel or a protective order. Avoid words like 'improper' or 'invalid' in the transcript; those are legal conclusions. Also, keep the original notes and audio, because the dispute may later require the court to review what happened.