The Sealed Sidebar, the Subpoena, and the Notarized Certificate
You are the official court reporter for a six-week criminal trial. On day 12, the judge holds a 14-minute bench conference, then says, “This sidebar is sealed; do not transcribe it.” Later that day, defense counsel asks you for an “advance, uncertified copy” of the sealed sidebar because his expert is “not admitted yet” and needs it before a 9 a.m. hearing; he offers a $500 rush fee. A newspaper reporter then emails asking for your audio files and rough notes. The clerk of court calls and says the judge “remembers saying ‘I will not permit that’ rather than ‘I cannot permit that’” and asks you to change the transcript before filing. Your certification page is already printed and notarized, but you have not yet proofread pages 880–1,240. The local rule requires the certified transcript to be filed within ten days; the tenth day is Friday.
1. The judge sealed the sidebar and told you not to transcribe it. Defense counsel offers a rush fee for an advance copy; a reporter requests audio and notes. What do you release?
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Follow the sealing order. If the judge said “do not transcribe,” do not create a transcript of the sidebar. Preserve your notes and audio as required by retention rules and any court order; a sealing order is not a license to destroy. Do not release the sealed sidebar to defense counsel, the expert, or the media without court authorization. The $500 fee is irrelevant and accepting it could create an ethical problem and an appearance of favored access. For the media subpoena or request, notify the court and the parties and let the court decide; you may provide a certified copy of the public record only. If the order is ambiguous-“sealed” versus “off the record”-seek clarification on the record: “Your Honor, should this be transcribed and filed under seal, or not transcribed?” Do not privately decide. If counsel needs the material for a hearing, counsel should apply to the court under the protective order; the reporter is not the gatekeeper of sealed matters.
2. The clerk says the judge remembers “I will not permit that” rather than “I cannot permit that” and asks you to change the transcript before filing. What do you do, especially since your certificate is already notarized?
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Do not change the transcript based on memory. Check the audio and your notes. If the audio confirms “cannot,” the transcript stands; a judge’s later recollection is not a transcript correction. If the audio is ambiguous, or confirms “will not,” correct only after verification and make the correction transparent. Because the certificate is already notarized, silent alteration is improper. The proper course is to bring the matter to the judge on the record or by a written correction procedure: the judge may direct a correction, and you may prepare a corrected transcript with a statement of correction and a new certificate. The original certificate affirmed accuracy; altering the text after notarization without re-certification misleads the court. Document the chambers request, preserve the original notes and audio, and do not let ex parte pressure substitute for verification. If the judge insists on a change that the audio does not support, seek guidance from the court’s chief judge or your supervising authority.
3. You have not proofread pages 880–1,240 and the filing deadline is Friday. Can you file the certified transcript and correct later?
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No. Certify only after proofreading and verification. Filing a certified transcript you have not reviewed violates the meaning of certification and could mislead the court. The options are to request a short extension from the court before the deadline, file only the completed and certified portions if local rules permit volume-by-volume filing, or arrange additional proofreading help while preserving confidentiality. If you file completed volumes, each certificate should cover only what is filed; do not use the old notarized certificate for changed content. If an error is later found, prepare a corrected transcript with notice to the court and parties. A deadline does not justify a false certificate. Communicate early with the judge’s chambers and the parties, document the request, and keep the notes and audio secure.