OBJECTIONS TO A NOTICE OF TAKING VIDEOTAPED DEPOSITION

Taking the videotaped deposition of a material witness (i.e. party to a lawsuit, important fact witness or expert witness) is something that is routinely done by both sides in a lawsuit pursuant to the Fla.R.Civ.P. Rule 1.310 (Depositions Upon Oral Examination). This is especially true when a client wants to gauge what kind of witness the Plaintiff or other material witness will make or when there is some concern that a material witness may be unavailable for trial. Some firms are objecting to videotaped depositions that are not “properly noticed” and cite to the language below:

Fla.R.Civ.P. Rule 1.310(b)(4) notes that, “any deposition may be recorded by videotape without leave of court or stipulation of the parties, provided the deposition is taken in accordance with this subdivision: (A) Notice. A party intending to videotape a deposition shall state in the notice that the deposition is being videotaped and shall give the name and address of the operator. Any subpoena served on the person to be examined shall state the method or methods for recording the testimony.”

Although listing the company which the videographer is employed with should suffice, in an abundance of caution and to ensure the videotaping of the deposition is not objected to, it might be wise to list the name of the videographer and the address of the company which he/she works for. If after communicating with the client, we are unwilling to proceed without the videotape or perhaps to reschedule the deposition, one way to test it is to videotape over objection and see whether the Court rules it inadmissible in trial. Alternatively, opposing counsel could move to terminate the deposition and move for a protective order.

As for the “method or methods for recording the testimony”, this is unclear, other than perhaps to say that the testimony will be recorded by way of digital video recording. The case law is not on point relating to this narrow topic. For the most part, the case law only addresses the admissibility of videotaped testimony at trial, rather than whether there is a requirement to list the name of the videographer, as that has seemingly not been brought up on appeal. That being said, it was not until 1988, that there was an amendment to the Rule to not only ensure that specific notice was given that the deposition will be videotaped, but to “disclose the identity of the operator.” It was decided not to make a special provision for a number of days’ notice in this regard.

Understandably, this raises a number of challenges in ensuring compliance with this technical but rarely enforced Rule. Specifically, quite often the Court Reporting agencies that provide the videographers do not know who will be selected as the videographer until either the day of or perhaps a day or two before the deposition, which makes compliance challenging. It is unclear as to whether it is acceptable to list: Videographer, John Doe or other qualified videographer from Court Reporting Agency who will conduct a recording of the deponent by way of digital video recording. Although objecting to the failure to list the name of the videographer on the Notice of Taking Videotaped Deposition is rarely raised or challenged, including this information in the Notice is something that should be considered when dealing with a challenging opposing counsel.