[Congressional Record Volume 143, Number 150 (Friday, October 31, 1997)]
[Senate]
[Pages S11545-S11546]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. GRASSLEY (for himself and Mr. Durbin):
  S. 1352. A bill to amend rule 30 of the Federal Rules of Civil 
Procedure to restore the stenographic preference for dispositions; to 
the Committee on the Judiciary.


   THE FEDERAL RULES OF CIVIL PROCEDURE RULE 30 AMENDMENT ACT OF 1997

  Mr. GRASSLEY. Mr. President, I rise today to introduce a bill to 
amend rule 30 of the Federal Rules of Civil Procedure. This bill, which 
I am introducing with Senator Durbin, will restore the stenographic 
preference for depositions taken in Federal Court. Under our system of 
government, Congress has the duty and responsibility to scrutinize 
carefully all of the rules of Civil Procedure promulgated by the 
Judicial Conference and transmitted to us by the Supreme Court for 
review--and to make modifications or deletions when appropriate. 
Indeed, when many changes to the rules were proposed in 1993, some were 
to be modified in legislation which was passed by the House. 
Unfortunately, the crush of the end-of-session legislation that year 
made it impossible for the Senate to act on this bill to modify these 
changes and they took effect in December of that year.
  Many of us in this body wanted to bring the bill forward, but 
opponents of the proposed modifications were able to delay any Senate 
consideration until after the effective date required by the Rules 
Enabling Act. Because of our responsibility to review these rules, I 
want to bring one of the modifications back before the Senate. This 
modification concerns rule 30 of the Federal Rules of Civil Procedure.
  From 1970 to December 1993, rule 30 permitted depositions to be 
recorded by non stenographic means, but only upon court order or with 
the written stipulation of the parties. The change in rule 30(b) 
altered that procedure by eliminating the requirement of a court order 
or stipulation and affording each party the right to arrange for 
recording of a deposition by non stenographic means.
  Testimony at hearings conducted by the Judiciary Subcommittee on 
Courts and Administrative Practice in the 103d Congress raised concerns 
about the reliability and durability of video or audio tape 
alternatives to stenographic depositions. There was also information 
submitted suggesting that technological improvements in stenographic 
recording will make the stenographic method more cost-effective for 
years to come.
  Depositions recorded stenographically have historically provided an 
accurate record of testimony which can conveniently be used by both 
trial and appellate courts. In addition, the certification of accuracy 
by an independent and unbiased third party is a significant component 
of trustworthy depositions. Studies undertaken by the Justice Research 
Institute confirm the fact that a stenographic court reporter is the 
qualitative standard for accuracy and clarity in depositions, and a 
court reporter using a computer--aided transportation is the least 
costly method of making a deposition record.
  Even now, 5 years after the rule change, court reporters associations 
contend that mechanical recording frequently produces unintelligible 
passages and is laden with other dangers such as the inability to 
identify speakers. Rather than becoming the way of the future, 
electronic recording has been faulted by judges and attorneys as an 
error-prone system where tapes are often untranscribable because of 
inaudible portions, machines frequently fail, and recorders pick up 
every background sound, including papers rustling, coughing, and 
attorney sidebar conferences which then must be edited out before use 
by jurors or for the appeal process.
  The case was never made for unilateral decisions on the use of 
nonstenographic recording of depositions. The legislation that I am 
introducing today with my colleague from Illinois, Senator Durbin, 
would restore the rule that nonstenographic recording of depositions is 
authorized only when permitted by court order or stipulation of both 
parties.
  This version of the rule worked very effectively for over 23 years. 
In fact, I am not aware of any instance where an attorney or party was 
denied the ability to use an alternative method when it was requested. 
However, the most important factor was that the prior incarnation of 
the Rules recognized the potential for errors from methods other than 
stenographic means and thus established the safeguards of stipulation 
or court order. In fact, the notes to accompany the 1970 version of the 
Civil Rules said it best:

       In order to facilitate less expensive procedures, provision 
     is made for the recording of testimony by other than 
     stenographic means--e.g., by mechanical, electronic, or 
     photographic means. Because these methods give rise to 
     problems of accuracy and trustworthiness, the party taking 
     the deposition is required to apply for a court order. The 
     order is to specify how the testimony is to be recorded, 
     preserved, and filed, and it may contain whatever additional 
     safeguards the court deems necessary.
       (Notes to accompany the 1970 Revisions to the Federal Rules 
     of Civil Procedure)

  Mr. President, this legislation gives us the chance to do what we 
should have done 4 years ago and restore the rule in order to maintain 
the high standard of justice for which our legal system is known.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.

[[Page S11546]]

  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1352

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled, That 
     paragraphs (2) and (3) of Rule 30(b) of the Federal Rules of 
     Civil Procedure are amended to read as follows:
       ``(2) Unless the court upon motion orders, or the parties 
     stipulate in writing, the deposition shall be recorded by 
     stenographic means. The party taking the deposition shall 
     bear the cost of the transcription. Any party may arrange for 
     a transcription to be made from the recording of a deposition 
     taken by nonstenographic means.
       ``(3) With prior notice to the deponent and other parties, 
     any party may use another method to record the deponent's 
     testimony in addition to the method used pursuant to 
     paragraph (2). The additional record or transcript shall be 
     made at that party's expense unless the court otherwise 
     orders.''.
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