Excitement and skepticism around non-stenographic depositions are common. Even our litigator founder, Karl Seelbach, had his own moment of uncertainty a long time ago, and by learning something new, he started Skribe.ai. Some court reporting agencies and attorneys are similarly confused about non-stenographic depositions, and we believe everyone needs the right information to make sound decisions. As busy attorneys, keeping up with the latest rule changes can be challenging. That’s why understanding your options is vital.
The truth is, you have more flexibility than you might realize, and understanding these rules will help you make the best choices for you and your clients. If you care about “the record,” cutting through the noise with clear, concise facts is crucial. Let’s set the record straight, starting with Texas.
Which Texas Rule is correct?
In Skribe’s home state of Texas, the rule that litigators should become familiar with is the “Texas Rules of Civil Procedure” (TRCP 199.1(c)). This rule was adopted by Texas in 1998 and states:
This Texas rule closely resembles the Federal Rule of Civil Procedure 30(b)(3), which has existed since 1993. So, not only are non-stenographic depositions and recordings of depositions legal in Texas, but they have been that way for decades.
Why the confusion?
We are starting to see a number of stenographer emails, signatures, and general bad behavior in some depositions that want to throw a different rule at you. The most common citation is the “Texas Government Code” §154.101.
This code does exist and applies to stenographic or certified reporters. That is the code that governs all of the activities around shorthand reporting. The problem occurs when that rule is cited in situations it does not pertain to. Skribe and other non-stenographic options are just that, not stenographic; the statute does not apply. Skribe isn’t a shorthand or court reporting agency and never claimed to be. We do not do stenography; we do not do shorthand reporting.
We provide our attorney customers an easy way to record their own depositions non-stenographically (as per TCRP 199.1(c)). After the deposition is recorded by video and audio, our advanced automated speech recognition (ASR) system transcribes the recordings and provides a same-day rough AI-generated transcript to the attorney that is synced to the video record. Then, a final version of the transcript is proofread, and any errors are corrected by a human, ensuring the highest accuracy. This AI + human review approach allows Skribe to combine the speed and efficiency of AI with the critical attention to detail that only a human expert can provide.
Since the deposition is done non-stenographically, the audio-video recording is the official record of the event. The transcript is there as a supporting document and reference tool. This closely tracks the Texas rule (TRCP 203), which provides:
What this means is that contrary to the information tossed out by certain shorthand reporters or agencies, the Texas Government Code §154.101 expressly states that it does not “sanction or prohibit the use of electronic court recording” if conducted in accordance with Texas rules. Furthermore, the Code explicitly articulates that Chapter 154 does not apply to a party, the party’s attorney, or an employee of a party or the party’s attorney. In other words, attorneys and their employees are well within their rights to record depositions without the involvement of shorthand reporters. Many attorneys have used their own video cameras and tapes in prior years without issue. With Skribe, these attorneys are now able to record depositions themselves using their own computers and software.
We all agree that following the law is of the utmost importance when it comes to depositions, and we aim to be very clear on what the law actually says.
How do you notice a non-stenographic deposition?
Other than the law and how it lays out the options to the attorneys, the next important aspect that sets you up for a successful non-stenographic event is the deposition notice. In order to be compliant, the deposition of the witness must be noticed non-stenographically. This is done to make all parties aware of the intended method of recording. Having conducted over 700 depositions in Texas alone, Skribe has developed a standard way to help attorneys satisfy notice requirements and to help educate opposing counsel on the Skribe process.
All participants in a Skribe deposition have at least three notices and opportunities to ask questions or object before testimony is recorded: the deposition notice (NOD), upon entering the Skribe-hosted Zoom waiting room, and during the read-in by the Skribe Liaison that starts the event. We make it crystal clear that the event is being done non-stenographically in accordance with Texas law.
Who can swear in a witness?
Another general area for clarification to clear up is who is allowed to swear in the witness for a deposition. Section 406.016 of the Texas Government Code expressly authorizes a “Notary Public” to administer oaths.
In a Skribe Live event, we provide a “Liaison” to provide light technical support, act as a co-host, and swear in the witness. Since all Skribe Liaisons are notaries for that jurisdiction, this further solidifies the non-stenographic deposition recordings. Our Liaison also certify that the audio-video recording is authentic.
Additionally, parties have the option to utilize unsworn declarations or verifications to “swear-in” a witness, thereby adding another layer of flexibility to deposition recording practices.
What if opposing counsel prefers a stenographer?
We have had a few occasions where opposing counsel hired their own shorthand court reporter. That’s perfectly fine. Any party may hire, at their own expense, a stenographer to attend a non-stenographic deposition, which is exactly what the Texas rules provide:
Cross-noticing a deposition in this manner is allowed under the law. We welcome professional stenographers to join a Skribe event and capture a record for their client. However, we must insist that some event rules are followed.
Such as:
- The Skribe Liaison will swear in the witness, unless the parties agree otherwise on-the-record;
- Disruption, arguments, and other delays of the event will not be tolerated. Skribe reserves the right to remove disruptive participants from our events.
Our attorney customers have adapted to the rules in place, the ease of depositions on Zoom, and the change to non-steno as a preferred way to capture their testimony. More and more Texas litigators are trusting Skribe to make sure recordings are clear, accurate, and reliable. As a Zoom ISV (Integrated System Vendor) partner, you can be confident that your depositions retain the same Zoom setup you’re familiar with.
Recapping your options
We hope this information clarifies some of the confusion, answers some of your questions, and helps illustrate what laws apply to non-stenographic depositions in Texas, and which do not. We leave it up to you to gauge your level of comfort and risk in transforming your practice to an easy-to-adopt software-based approach with better pricing, more advanced tools, and the speed you need to stay ahead in the case.
We welcome questions, challenges, and opportunities to help attorneys, firms, and states update their laws to allow for more and better technology.
Find more information on admissibility, including the “Skribe Admissibility Assurance” here – https://skribe.ai/admissibility/.
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