The 'Hired Gun' Comment and the Rough-Draft Request
You are a Louisiana certified shorthand reporter hired by the defense firm to report a discovery deposition in a products-liability case at your office. Plaintiff's counsel appears by videoconference. During a heated exchange, defense counsel says, 'Plaintiff's expert is a paid hired gun who wouldn't know a torque wrench from a toy.' Plaintiff's counsel immediately says, 'I object; that's inappropriate.' Defense counsel replies, 'Strike that; off the record,' but the court reporter's machine has already captured it and no one has stipulated to go off the record. The deposition continues. Afterward, defense counsel calls you privately and asks you to delete the 'hired gun' line from the transcript and to send an uncertified rough draft only to the defense 'for strategy,' promising future work. Plaintiff's counsel has not seen the draft. What do you do?
1. Can you delete the comment because defense counsel said 'strike that'?
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No. 'Strike that' by a lawyer does not erase a statement already made on the record. A court reporter records proceedings; only the court can order a portion sealed or stricken, and even then the original record is preserved. A stipulation of all parties might justify going off the record prospectively, but it cannot retroactively delete what was captured. The 'hired gun' comment is counsel's statement, not a witness answer, and plaintiff's counsel objected. The reporter should leave it in and may note the objection. Deleting it would alter the official record and could expose the reporter to discipline and the case to a dispute about what was said.
2. How should you handle the uncertified rough-draft request?
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An uncertified rough draft is not a certified transcript, but the reporter still owes impartiality. If a rough draft is provided, it should be provided to all parties who appeared, not just the defense. Sending it only to defense for 'strategy,' especially in exchange for future work, creates an appearance of favoritism and could be seen as an ex parte benefit. The reporter may decline to provide any rough draft until the certified transcript is ready, or provide it on equal terms. The promise of future work is irrelevant and should not influence the decision. The reporter should keep a written record of the request and the response.
3. What are your ethical and recordkeeping obligations if defense counsel insists?
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Retain the original stenographic notes, audio, and any draft. Do not delete or edit the file. The reporter should tell defense counsel, in writing if necessary, that the comment cannot be removed without a court order and that any draft will be handled even-handedly. If counsel persists, the reporter should consult the certifying board or counsel's own ethics counsel, not comply. The certified transcript should accurately reflect the proceedings, including the objection and the 'strike that' remark if it was made on the record. A reporter's duty of confidentiality does not permit altering the record; it restricts improper disclosure.