An Instruction Not to Answer and a Request to Go Off the Record
You are the deposition officer in a civil case. At 2:47 p.m., on page 88, defense counsel says, 'I instruct the witness not to answer; this calls for privileged information.' Plaintiff's counsel says, 'You can't do that,' and asks you to go off the record. The witness had already begun a sentence when the instruction came. The deposition has been running 4 hours 10 minutes. The noticing attorney told you before the start to 'keep it clean - no sidebars on the record.' Exhibit 12 has been marked but not yet discussed.
1. What goes on the record at 2:47 p.m., and what does not?
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Goes on the record, verbatim:
- The instruction not to answer, exactly as spoken.
- The witness's partial answer, even though it is a fragment. The witness spoke before the instruction landed; a fragment is still testimony, and deleting it changes the record.
- Opposing counsel's response.
- The time, 2:47 p.m., if your format uses time notations at breaks or significant events.
Does not go on the record:
- Any characterization by you. Not 'Mr. Smith objected,' not 'counsel interrupted.' Quote the words and let the reader draw conclusions.
- Any ruling. You are not the judge; whether the privilege claim is well taken is for the court, and the parties will preserve it for a motion to compel or a protective order.
The instruction to 'keep it clean' does not authorize omitting an instruction not to answer. That is precisely the sort of exchange a court will later want to see, and it is not a sidebar - it is on the record by definition.
2. How do you handle the request to go off the record?
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You do not unilaterally go off the record, and you do not ignore the request either.
- Confirm on the record. State the time and ask, 'Going off the record,' and wait for assent from the noticing attorney or agreement among counsel. The reporter administers the proceeding; the attorneys control it.
- Take the break. Four hours ten minutes in, a break is reasonable regardless, and the privilege dispute is going to need one.
- Come back on the record explicitly, read the time, and note who is present if anyone left.
- If the dispute continues off the record, you stay out of it. Do not offer an opinion on the privilege claim, do not advise either side on procedure, and do not take a private account of what was said during the break for insertion later.
- If the noticing attorney directs you to strike the earlier exchange, decline and note that you will include it unless the parties stipulate on the record to a protective order or the court rules. The stipulation, not the deletion, is what belongs in the record.
3. The deposition ends before Exhibit 12 is ever discussed. What belongs in the transcript and the exhibit index?
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Exhibit 12 stays marked. Marking is an event that occurred on the record, and the failure to examine the witness about it does not unmark it.
The transcript should show the marking as it happened - '（Exhibit 12 marked for identification.）' or the local equivalent - and nothing more. Do not add a note saying the exhibit was withdrawn, abandoned, or not discussed unless someone said so on the record.
In the exhibit index:
- List Exhibit 12 with its description as given at marking, not with a description you inferred from the document's contents.
- Do not renumber the exhibits to close the gap. Exhibit 13, if there is one, remains Exhibit 13.
If the noticing attorney asks you to drop an unexamined exhibit from the index, decline and suggest the parties state on the record that the exhibit is withdrawn. Whether an unexamined exhibit gets into evidence is a question for the court; your index records what was marked, and a reader comparing your index to the clerk's file needs them to match.