The NDA Handed Over Ten Minutes Before the First Question
It is the closing week of a wrongful-death case, and you are the only reporter for a three-day deposition in a hospital conference room. The witness is the defendant hospital's nursing director. Ten minutes before the first question, the noticing attorney hands you a signed "Confidentiality and Non-Disclosure Agreement" requiring you to destroy your stenographic notes and audio within 30 days of delivering the transcript and giving the firm "sole discretion" over any corrections. You were booked directly by that firm; no agency is involved. Your state's rules require you to preserve notes for at least two years and allow their inspection on order of a court. Mid-afternoon, on a break, the witness says she "misspoke" about a medication dose and asks you to change the number.
1. Do you sign the agreement? Walk through the decision and describe what you say to the noticing attorney.
Read the worked answer
Do not sign it as written. Two clauses conflict with duties you cannot contract away:
- The 30-day destruction clause. Your rules require preservation for at least two years, and other parties may inspect the notes on court order. Signing a promise to destroy them puts you in breach of one obligation whichever way you turn, and it eliminates the very material anyone would need to test the accuracy of the transcript.
- "Sole discretion" over corrections. Correcting the record is governed by the rules and, ordinarily, by the read-and-sign procedure - not by one party's unilateral say-so. Conceding it trades away the neutrality you owe to every party, including the one that never handed you a document.
What to say: briefly, without arguing the merits, explain that the preservation and correction terms conflict with the rules under which you are certified, and offer a redline - confidentiality acknowledged, notes retained under the applicable retention rule, corrections handled through the normal procedure. Offer to route the question to the firm's own counsel. If the firm makes signing a condition of your serving, that is their call, but put your objection in writing before the first question so the file reflects it.
2. Off the record, the witness asks you to change a dosage number in your notes. What is your response, and what options does she actually have?
Read the worked answer
You do not alter the number. A reporter's notes are not a draft to be negotiated with a witness, and a break-room request is not a correction to the record.
What she can do instead:
- State the correction on the record when the deposition resumes - e.g., "May I correct something I said earlier?" - so the correction, the original, and the timing all appear in the transcript. That is the cleanest outcome and it protects her.
- Raise it through counsel, who can stipulate to a correction or ask a follow-up question that clarifies the dosage.
- Use the read-and-sign procedure, if the rules provide for one, so a formal errata sheet documents the change and the reason.
Practically: tell her plainly that you cannot change what was said, that you can only record what is said, and that a correction spoken on the record will be preserved. Do not promise to "take care of it," and do not silently flag it to her attorney in a way that looks like you are working for one side - mention it to both counsel or to neither.
3. After the deposition, the noticing attorney asks you to ship the original paper notes and the audio file to his office and keep no copies. How do you respond?
Read the worked answer
Refuse, politely, and do not destroy anything.
- The notes and audio are your working materials, not the attorney's property. The official record is the certified transcript, which you will produce on order and payment.
- Retention is a regulatory duty, not a courtesy to the noticing firm. Turning over the only copy and keeping none would leave you unable to defend the transcript or comply with a later inspection order - including an order from the very party who did not hire you.
- The audio is a backup, not the record. Absent a subpoena or court order, you are generally not obliged to produce it; if one issues, comply and say so in writing.
- If the firm wants a copy, the answer is a certified transcript. If they want the notes, the answer is: on order of the court.
Put the refusal in writing, keep a copy, and note that you will retain everything for the full retention period. Do not negotiate custody of the only copy as a favor.