Videotaping depositions are relatively new to some attorneys. However, attorneys are discovering how beneficial it is to videotape deponents. Most times our clients are using these videos for trial preparation, mailing the testimony to their clients, or using clips at trial for a bigger impact with the jury. Whatever the intent is for having a videographer at a deposition, it’s important to be familiar with Code of Civil Procedure in California.
CCP 2025.330(c) The party noticing the deposition may also record the testimony by audio or video technology if the notice of deposition stated an intention also to record the testimony by either of those methods, or if all the parties agree that the testimony may also be recorded by either of those methods. Any other party, at that party’s expense, may make an audio or video record of the deposition, provided that the other party promptly, and in no event less than three calendar days before the date for which the deposition is scheduled, serves a written notice of this intention to make an audio or video record of the deposition testimony on the party or attorney who noticed the deposition, on all other parties or attorneys on whom the deposition notice was served under Section 2025.240, and on any deponent whose attendance is being compelled by a deposition subpoena under Chapter 6 (commencing with Section 2020.010). If this notice is given three calendar days before the deposition date, it shall be made by personal service under Section 1011.
There have been several times videographers, including myself, have shown up for depositions just to be sent away because the deposition notice didn’t have the intent to video record. It’s often that the opposing counsel will disagree with videotaping a witness for one or more reasons. This can be because of the witness’s nerves, not being prepared to be videotaped and refusing to be in front of a camera, or denying opposing counsel the advantage of videotaping, or simply because it doesn’t state it on the notice.
Many attorneys will be proactive and have it on every notice, whether they plan to use a videographer or not. The notice can state this in many different ways, but often times it will appear something along these lines:
“NOTICE IS FURTHER GIVEN that, pursuant to California Code of Civil Procedure Sections 2025.220, et seq., 2025.340, et seq., and 2025.620, et seq., it is the intention of the party noticing this deposition to record all deposition testimony by video technology, in addition to recording the testimony by the stenographic method as required by Section 2025.330, and the party noticing the deposition also reserve the right to use at trial video recordings of the deposition testimony of each such deponent.”
The other Code of Civil Procedure I wanted to point on is the CCP 2025.340. Here are some highlights that pertain to the videographers during the deposition:
CCP 2025.340 If a deposition is being recorded by means of audio or video technology by, or at the direction of, any party, the following procedure shall be observed:
CCP 2025.340(a) The area used for recording the deponent’s oral testimony shall be suitably large, adequately lighted, and reasonably quiet.
Videographers always want to provide the clients the best audio and video possible. Occasionally this will be an issue during depositions with outside noise, loud vehicles or bad lighting. I know several times I personally have had to go off record from loud conversations outside of the conference room or street sirens. The majority of the time it’s obvious that it will cause disruption and everyone will pause and wait for it to stop. But if it doesn’t, it’s important that we go off record and either wait for the noise to stop or, in a worst-case scenario, find a new room.
CCP 2025.340(b) The operator of the recording equipment shall be competent to set up, operate, and monitor the equipment in the manner prescribed in this section. Except as provided in subdivision (c), the operator may be an employee of the attorney taking the deposition unless the operator is also the deposition officer.
CCP 2025.340(c) If a video recording of deposition testimony is to be used under subdivision (d) of Section 2025.620, the operator of the recording equipment shall be a person who is authorized to administer an oath, and shall not be financially interested in the action or be a relative or employee of any attorney of any of the parties, unless all parties attending the deposition agree on the record to waive these qualifications and restrictions.
CCP 2025.340(g) The operator shall not distort the appearance or the demeanor of participants in the deposition by the use of camera or sound recording techniques.
It’s important that the videographer doesn’t dramatize the deponent or attorneys in any way with sound or picture. Have you had that videographer that keeps telling an attorney or witness to put their microphone back on or put it in a different spot? It’s not only so you can be heard clearly, but it’s the videographer’s duty to keep everyone in the room at the same sound level.
CCP 2025.340(h) The deposition shall begin with an oral statement on camera or on the audio recording that includes the operator’s name and business address, the name and business address of the operator’s employer, the date, time and place of the deposition, the caption of the case, the name of the deponent, a specification of the party on whose behalf the deposition is being taken and any stipulations by the parties.
This code pertains to that 1-2 minute read-on at the beginning of the deposition and why we need to say it every time and for every deponent, regardless if they are back to back. It shouldn’t ever take longer than 2 minutes for the videographer to state the read-on and for the court reporter to administer the oath.
CCP 2025.340 (i) Counsel for the parties shall identify themselves on camera or on the audio recording.
This too is often commented about during a multiple deponent deposition. It can sound ridiculous at the time to keep repeating the appearances and who everyone represents, but at the end of the day, it’s really important to have that on record.
CCP 2025.340(j) The oath shall be administered to the deponent on camera or on the audio recording.
This as well goes with what I was saying with CCP 2025.340(h). Some attorneys will question why this is done after the read-on, but it’s important to get this on record once the read-on is completed.
CCP 2025.340(k) If the length of the deposition requires the use of more than one unit of tape, the end of each unit and the beginning of each succeeding unit shall be announced on camera or on the audio recording.
During a deposition, at the end of the videotape, the videographer should state, “This is the end of Media Number 1, going off record, the time is 10:00 am.” The DVD’s used to record the deposition typically holds 120 minutes per disc. The videographer should give a 5 or 10-minute warning so the questions can wrap up at a reasonable spot. The following video should start with, “This is the beginning of the Media Number 2. We are on record at 10:10 am.”
CCP 2025.340(l) At the conclusion of deposition, a statement shall be made on camera or on the audio recording that the deposition is ended and shall set forth any stipulations made by counsel concerning the custody of the audio or recording and the exhibits, or concerning other pertinent matters.
Oftentimes attorneys and videographers forget the importance of this code. Attorneys want to go off record to talk about stipulation, then the attorneys tell the videographer that the stipulation doesn’t need to be on the video recording. This one can be tricky. It’s the videographer’s duty to explain that they need to go back on video record so the deposition can be concluded properly. At the end of the deposition, something like this needs to be stated on record by the videographer, “This concludes the deposition of (witness’ name). Total media used was (disk number). We are off record at (time).”
Of course there are additional state codes that apply to videotaping a deposition, as well as federal codes. Occasionally it seems that videographers get the impression from attorneys that they don’t understand why we worry about sound and getting the right lighting in a room, why there’s a read-on, and why we have to make it clear agreements are said on record before concluding. Every client should feel secure about hiring their videographer. Like Wood & Randall, many reporting firms won’t use videographers unless they follow these rules.
In another related article, we discuss 5 Reasons You May Want to Videotape Your Next Deposition.