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Important Amendments to Neb. Ct. R. Disc. for Depositions

Important Amendments to Neb. Ct. R. Disc. for Depositions
 
 
 
 
On October 21, 2015, the Nebraska Supreme Court adopted several amendments to the Neb. Ct. R. Disc. §§ 6-3276-3306-331, and 6-332, which became effective January 1, 2016. Several of those amendments specifically affected the court reporter's role in a deposition, including where the court reporter is supposed to be located during telephonic or other remote depositions and the requirement that the court reporter provide an on-the-record statement before the beginning of each deposition.  Below are a couple of those amendments and the practical implications those amendments have on depositions.  For a complete list of the rule amendments, please click the above-referenced link.
 
The first important amendment is to Neb. Ct. R. Disc. § 6-330(b)(7).  This amendment states: 
 
"the parties may stipulate in writing, or the court may upon motion order, that a deposition be taken by telephone or by other remote means. For the purposes of these rules, a deposition taken by telephone or by other remote means is taken at the place where the deponent is to appear to answer questions. Absent a court order or stipulation of the parties, the officer must be in the same location as the deponent." (deletions omitted)  
 
As a leader in the use of technology during depositions, hearings and trials, Thomas & Thomas sees this amendment becoming more and more relevant as more attorneys use other remote means for conducting depositions.  For example, our office has seen an increase in the use of videoconferencing and mobile videoconferencing for deposing people across the state and country.  Not only does videoconferencing and mobile videoconferencing save money, time and effort for attorneys and their clients, but it also allows the court reporter to remain here in Nebraska, thus reducing the cost of the transcript even more.  Plus, with the advent of document cameras and other technologies, conducting a deposition remotely has never been easier.  However, it is important to remember that the presumption is the court reporter must be in the same location as the deponent unless a court order or stipulation of the parties states otherwise.
The next important amendment is to Neb. Ct. R. Disc. § 6-330(b)(8), which is as follows:
 
"(8) Officer’s Duties.

(A) Before the Deposition. Unless the parties stipulate otherwise, a deposition must be conducted before an officer identified by Rule 28 as a person before whom a deposition may be taken. The officer must begin the deposition with an on-the-record statement that includes: (i) the officer's name and business address; (ii) the date, time, and place of the deposition; (iii) the deponent's name; (iv) the officer's administration of the oath or affirmation to the deponent; and (v) the identity of all persons present.

(B) Conducting the Deposition; Avoiding Distortion. If the deposition is recorded nonstenographically, the officer must repeat the items in Rule 30(b)(8)(A)(i)-(iii) at the beginning of each unit of the recording medium. The deponent’s and attorneys’ appearance or demeanor must not be distorted through recording techniques.

(C) After the Deposition. At the end of a deposition, the officer must state on the record that the deposition is complete and must set out any stipulations made by the attorneys about custody of the transcript or recording and of the exhibits, or about any other pertinent matters."
 
This amendment adds a requirement that the court reporter provide an on-the-record statement before and after a deposition is conducted.  Just like Neb. Ct. R. Disc. § 6-330(b)(7), the parties can stipulate away this requirement, if desired.  Without said stipulation, these on-the-record statements will become part of the record.
 
The final important amendment is to Neb. Ct. R. Disc. § 6-330(e), which governs the reading and signing the deposition transcript.  Rule 30(e) now reads as follows:
 
"(e) Review; Waiver; Motion to Suppress.

(1) On request by the deponent or a party before the deposition is completed, the deponent must be allowed thirty days after being notified by the officer that the transcript or recording is available in which (a) to review the transcript or recording and (b) if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them. The deponent may be allowed more or fewer than thirty days if the parties stipulate to or the court orders a different number of days. The officer must note in the certificate required by Rule 30(f)(1) whether a review was requested and, if so, must attach any changes the deponent makes during the period specified above for review.

(2) All objections to the accuracy of the deposition, including objections to accuracy of the interpreter’s interpretation of the questions or answers, are waived if a request for review is not made before the deposition is completed or, if a request for review is made, no changes are submitted to the officer in the time and manner required by subdivision (1) of this rule and no motion is made pursuant to subdivision (3) of this rule.

(3) If a request for review is made, the deponent or any party may move to suppress the deposition pursuant to Rule 32(d)(4) on the ground that the deponent was not allowed to review the transcript or recording as provided in subdivision (1) or that the transcription or interpretation of the deposition is inherently inaccurate."
 
The Comments to Rule 30(e) go on to note that this modification now requires the deponent or party to invoke the right to review before the end of the deposition and gives the deponent or party thirty (30) days to review after being notified that the transcript or recording is available.  This is contrary to the former rule, where the deponent had a right to review unless the right was waived by the deponent and the parties. This modification is important because now the presumption is that the reading and signing of the transcript is waived unless expressly stated otherwise.  Thus, if the right to review is not invoked, then the transcript of the deposition is deemed to be accurate.
 
Although these amendments may not affect the way an attorney prepares for or conducts a deposition, they are important procedural modifications that should be considered when scheduling and conducting a deposition.  
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