[House Report 104-228]
[From the U.S. Government Publishing Office]



104th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 1st Session                                                    104-228
_______________________________________________________________________


 
      AMENDMENT TO RULE 30 OF THE FEDERAL RULES OF CIVIL PROCEDURE

                                _______


 August 2, 1995.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

_______________________________________________________________________


   Mr. Moorhead, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 1445]

      [Including cost estimate of the Congressional Budget Office]
    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 1445) to amend Rule 30 of the Federal Rules of Civil 
Procedure to restore the stenographic preference for 
depositions, having considered the same, report favorably 
thereon without amendment and recommend that the bill do pass.
                                CONTENTS

                                                                   Page
Purpose and summary..............................................     2
Background and need for legislation..............................     2
Hearings.........................................................     2
Committee consideration..........................................     3
Committee oversight findings.....................................     3
Committee on Government Reform and Oversight Findings............     3
New budget authority and tax expenditures........................     3
Congressional Budget Office estimate.............................     3
Agency views.....................................................     4
Inflationary impact statement....................................     6
Section-by-section analysis......................................     6
Changes in existing law made by the bill, as reported............     6
Dissenting views.................................................     8
                          Purpose and Summary

    H.R. 1445 will amend rule 30(b) of the Federal Rules of 
Civil Procedure to restore the stenographic preference for the 
taking of pretrial depositions.

                Background and Need for the Legislation

    The present law took effect on December 1, 1993 over the 
objection of the Judiciary Committee and the House of 
Representatives. When the Judicial Conference testified in 1993 
in favor of this change they could not provide the Subcommittee 
on Courts and Intellectual Property a single justification for 
the change in law. Legislation was introduced to try and stop 
the change from taking place. That bill passed the House but 
not the Other Body and the change of law took effect 
automatically through the Rules Enabling Act.
    From 1970 to December 1993, Rule 30(b) of the Rules of 
Civil Procedure permitted depositions to be recorded by 
nonstenographic means but only upon court order or with the 
written stipulation of the parties. The change in Rule 30(b) 
that occurred in December 1993 altered that procedure by 
eliminating the requirement of a court order or stipulation, 
and afforded each party the right to arrange for recording of a 
deposition by nonstenographic means.
    Depositions recorded stenographically historically have 
provided an accurate record of testimony which can conveniently 
be used by both trial and appellate courts. Under present law, 
video or audio recordings that are to be introduced at trial 
must be transcribed according to Rule 32(c). The cost of this 
duplicating process will outweigh any cost savings gained by 
using audio or video tapes. The Subcommittee also heard 
testimony regarding two studies undertaken by the Justice 
Research Institute which concluded that a stenographic court 
reporter is the qualitative standard for accuracy and clarity 
in depositions, and that a court reporter using a computer-
aided transcription is the least costly method of making a 
deposition record.
    The Committee believes that, at this time, the case has not 
been made to allow either party, without stipulation by the 
other party or leave of court, to take depositions exclusively 
by audio or video tape. The Committee is in receipt of a letter 
from Mr. Norman J. Chachkin, Director of Litigation of the 
NAACP Legal Defense and Education Fund, In. dated July 18, 1995 
stating that the ``Legal Defense Fund does not object to H.R. 
1445 * * *''.

                                Hearings

    The Committee's Subcommittee on Courts and Intellectual 
Property held hearings on June 16, 1993 and May 11, 1995. On 
May 11, 1995 testimony was received from the following 
witnesses: The Honorable Ann Claire Williams, Judge, United 
States District Court for the Northern District of Illinois; 
the Honorable J. Phil Gilbert, Chief Judge, United States 
District Court for the Southern District of Illinois; Paul 
Friedman, Deputy Associate Attorney General, United States 
Department of Justice; William K. Slate II, President and Chief 
Executive Officer, American Arbitration Association; Gary M. 
Cramer, Registered Professional Reporter, National Court 
Reporters Association; Neal R. Gross, President and Chief 
Executive Officer, and Neal R. Gross & Company, Inc. on behalf 
of the American Association of Electronic Reporters and 
Transcribers (AAERT).
    Testimony at the Subcommittee hearing both in 1993 and in 
May of this year raised concerns about the reliability and 
durability of video or audio tape alternatives to stenographic 
depositions. There also was information submitted suggesting 
that technological improvements in stenographic recording will 
make the stenographic method cost-effective for years to come.

                        Committee Consideration

    On May 16, 1995, the Subcommittee on Courts and 
Intellectual Property met in open session and ordered reported 
the bill H.R. 1445, by a voice vote, a quorum being present. On 
July 12, 1995 the Committee met in open session and ordered 
reported the bill H.R. 1445 without amendment by a voice vote, 
a quorum being present.

                      Committee Oversight Findings

    In compliance with clause 2(l)(3)(A) of rule XI of the 
Rules of the House of Representatives, the Committee reports 
that the findings and recommendations of the Committee, based 
on oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

         Committee on Government Reform and Oversight Findings

    No findings or recommendations of the Committee on 
Government Reform and Oversight were received as referred to in 
clause 2(l)(3)(D) of rule XI of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 2(l)(3)(B) of House Rule XI is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 2(l)(C)(3) of rule XI of the 
Rules of the House of Representatives, the Committee sets 
forth, with respect to the bill, H.R. 1445, the following 
estimate and comparison prepared by the Director of the 
Congressional Budget Office under section 403 of the 
Congressional Budget Act of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 18, 1995.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary, House of Representatives, 
        Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
reviewed H.R. 1445, a bill to amend Rule 30 of the Federal 
Rules of Civil Procedure to restore the stenographic preference 
for depositions, as ordered reported by the House Committee on 
the Judiciary on July 12, 1995. CBO estimates that enacting 
H.R. 1445 would not result in any significant cost to the 
federal government. Because enactment of H.R. 1445 would not 
affect direct spending or receipts, pay-as-you-go procedures 
would not apply to the bill.
    This bill would restore a requirement that depositions in 
federal civil cases must be recorded by stenographic means 
unless both parties to the case agree in writing to some other 
form of recording testimony or the court orders that such 
nonstenographic means be used. Based on information from the 
Administrative Office of the United States Courts, we expect 
that enacting H.R. 1445 would not necessarily result in fewer 
nonstenographic depositions being taken. Rather, it would 
create an additional procedural step that would have to be 
followed before using nonstenographic methods, such as audio 
tape or video tape. This bill would not affect the current 
requirement that all depositions be transcribed if they are to 
be introduced at trial.
    Nonstenographic methods are generally less expensive than 
stenographic means for recording depositions. Because CBO 
expects that H.R. 1445 would not cause any significant change 
in the use of the various means of recording depositions, we 
estimate that enacting this bill would result in no significant 
cost to the federal government.
    Because this bill would not apply to state law, enacting 
H.R. 1445 would have no impact on state court procedures.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Susanne S. 
Mehlman.
            Sincerely,
                                              James J. Blum
                                   (For June E. O'Neill, Director).
                              Agency Views

                             COMMITTEE ON RULES    
                         OF PRACTICE AND PROCEDURE,
                  JUDICIAL CONFERENCE OF THE UNITED STATES,
                                    Washington, DC, April 28, 1995.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary, House of Representatives, 
        Washington, DC
    Dear Chairman Hyde: I write to advise you of the concern of 
the Advisory Committee on Civil Rules of the Judicial 
Conference on the proposed amendments to Civil Rule 30(b) 
contained in H.R. 1445. The legislation would require 
stenographic recording of all oral depositions unless otherwise 
ordered by the court or stipulated by the parties. It would 
undo amendments to Rule 30(b) that took effect on December 1, 
1993.
    Present Rule 30(b) permits the party taking the deposition 
to record it by sound, sound-and-visual, or stenographic means. 
No court order or mutual consent is required. The rule, as 
amended, effectively removes impediments to parties who want to 
take advantage of newer, more efficient, and less-expensive 
recording technologies. It regulates only the recording of oral 
depositions, most of which never are used at trial. It does not 
regulate the manner in which courtroom proceedings are 
recorded.
    The 1993 amendments to Rule 30 were adopted by the Supreme 
Court and transmitted to Congress only after the completion of 
a careful deliberative process, which included substantial 
public input. The 1993 amendments were originally considered in 
1988 by the Advisory Committee on Civil Rules. A draft rule was 
published for public comment in September 1989, followed by 
public hearings in early 1990.
    The draft proposal was modified in light of the comments, 
which disclosed potential problems with reliance at trial on 
tape-recorded testimony absent a written transcript. Another 
draft was published for public comment in August 1991, which 
generally required a written transcript of any deposition that 
was used in court. That proposal received hundreds of comments 
and was discussed at public hearings held in late 1991 and 
early 1992.
    After further consideration, the present amendments to Rule 
30 were approved in turn by the Advisory Committee, the 
Standing Rules Committee, and the Judicial Conference. On April 
22, 1993, the Supreme Court adopted the rule without further 
revision and transmitted it to Congress. It took effect seven 
months later when Congress took no action.
    Many of the criticisms voiced against the 1993 amendments 
to Rule 30 came from court reporters urging that video and 
audio tape recordings were unreliable and difficult to use at 
trial. The Advisory Committee was unanimous that these concerns 
were adequately dealt with in the revised draft.
    Rule 30, as amended, contains safeguards to assure the 
integrity and utility of any tape or other non-stenographic 
recording, including the following:
         (1) the officer presiding at the deposition must 
        retain a copy of the recording unless otherwise ordered 
        by the court or provided for by stipulation;
         (2) the presiding officer must state certain 
        identification information at the beginning of each 
        unit of recording tape or other medium;
         (3) any distortion of the appearance or demeanor of 
        deponents or counsel by camera or recording techniques 
        is expressly prohibited; and
         (4) the court retains the authority to require a 
        different recording method if the circumstances 
        warrant.
    The rule also permits any other party to designate an 
additional method (including stenographic means) to record the 
deposition at their expense. Finally, the rule requires the 
parties to furnish a written transcript if they intend to use a 
deposition recorded by non-stenographic means for other than 
impeachment purposes at trial or in a motion hearing.
    The changes to Rule 30 were developed after full 
consideration of competing interests and policies regarding use 
of stenographic versus non-stenographic methods of recording 
depositions. The amendments allow the parties to decide which 
recording method will be used in a particular case and are 
designed to facilitate use of modern technology, while ensuring 
an accurate evidentiary record. The Advisory Committee is 
unaware of any problem with the operation of the rule as 
amended.
    I urge you to consider opposing the undoing of the 1993 
amendments to Civil Rule 30(b).
            Sincerely yours,
                                   Patrick E. Higginbotham,
                                             U.S. Court of Appeals.
                     Inflationary Impact Statement

    Pursuant to clause 2(l)(4) of rule XI of the Rules of the 
House of Representatives, the Committee estimates that H.R. 
1445 will have no significant inflationary impact on prices and 
costs in the national economy.

                      Section-By-Section Analysis

    H.R. 1445 would amend paragraphs (2) and (3) of Rule 30(b) 
of the Federal Rules of Civil Procedure.
    Paragraph (2) restores a requirement that depositions in 
federal civil cases must be recorded by stenographic means 
unless both parties to the case agree in writing to some other 
form of recording or the court orders that such non 
stenographic means be used. 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.
    Paragraph (3) restates present law and contains conforming 
amendments.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3 of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

            RULE 30 OF THE FEDERAL RULES OF CIVIL PROCEDURE

Rule 30. Depositions Upon Oral Examination

    (a) * * *
    (b) Notice of Examination: General Requirements; Method of 
Recording; Production of Documents and Things; Deposition of 
Organization; Deposition by Telephone.
          (1) * * *
          [(2) The party taking the deposition shall state in 
        the notice the method by which the testimony shall be 
        recorded. Unless the court orders otherwise, it may be 
        recorded by sound, sound-and-visual, or stenographic 
        means, and the party taking the deposition shall bear 
        the cost of the recording. 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 designate another method to 
        record the deponent's testimony in addition to the 
        method specified by the person taking the deposition. 
        The additional record or transcript shall be made at 
        that party's expense unless the court otherwise 
        orders.]
          (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 the party's expense unless 
        the court otherwise orders.
          * * * * * * *
                            DISSENTING VIEWS

    H.R. 1445 would overturn Rule 30(b) of the Federal Rules of 
Civil Procedure--which allows the party taking a deposition to 
determine whether to record by sound, sound and visual, or 
stenographic means--and restore pre-1993 procedure requiring 
the stenographic recording of depositions (in the absence of a 
stipulation or court order to the contrary). We oppose this 
legislation because it represents an unwarranted intrusion into 
the Judiciary's legitimate rulemaking authority and would 
unnecessarily increase legal costs and make it more difficult 
for the poorest members of our society to have access to 
justice.
    As a general matter we, in Congress, should defer to the 
judicial branch regarding the promulgation of court rule. 
Pursuant to the Rules Enabling Act, court rules are developed 
and proposed according to a carefully considered set of 
procedures.\1\ In a letter to the Committee, Judge Patrick 
Higgingbotham, Chair of the Civil Rules Committee of the 
Judicial Conference, described the process pursuant to which 
Rule 30(b) was approved:

    \1\ See 28 USC Sec. Sec. 2071-77.
---------------------------------------------------------------------------
          The 1993 amendments to Rule 30 were adopted by the 
        Supreme Court and transmitted to Congress only after 
        the completion of a careful deliberative process, which 
        included substantial public input. The 1993 amendments 
        were originally considered in 1988 by the Advisory 
        Committee on Civil Rules. A draft rule was published 
        for public comment in September 1989, followed by 
        public hearings in early 1990. . . [The final] proposal 
        received hundreds of comments and was discussed at 
        public hearings held in late 1991 and 1992.\2\
    \2\ Letter from the Honorable Patrick E. Higginbotham, Chair, 
Advisory Committee on Civil Rules, Judicial Conference of the United 
States, to the Honorable Henry J. Hyde, Chairman, House Committee on 
the Judiciary (April 28, 1995) (on file with the House Committee on the 
Judiciary).

By contrast, H.R. 1445 was considered pursuant to a far more 
abbreviated process, with only two witnesses testifying at the 
May 11, 1995 hearing.\3\
    \3\ The two witness testified concerning H.R. 1445 at the May 11, 
1995 hearing were the National Court Reporters Association (who 
supported the bill) and the American Association of Electronic 
Reporters and Transcribers (who opposed the bill).
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    Moreover, in our view the Judiciary had good reason to 
adopt Rule 30(b) in 1993. By allowing the party noticing a 
deposition to choose from a variety of techniques, Rule 30 (b) 
permits the free market to decide which reporting method is the 
most desirable and cost effective. A number of studies have 
established that electronic court reporters and transcribers 
generally charge less for comparable services than stenographic 
reporters.\4\ For example, a landmark study conducted by the 
Federal Judicial Center for the U.S. Judicial Conference 
concluded the audio-based recording method provides significant 
cost savings over stenographic recording:

    \4\ Memorandum from National Center for State Courts regarding 
Literature Review of Electronic Court Reporting Methods (March 15, 
1994) (on file with the House Committee on the Judiciary).
---------------------------------------------------------------------------
          The average annual cost of one audio-based court 
        reporting system in federal district court is $18,604, 
        compared to $40,514 for a corresponding official 
        stenographic court reporting system. Projecting those 
        costs over six years, the average cost of an audio-
        based court reporting system is about $125,000, 
        compared to about $275,000 for the official court 
        reporting system.\5\
    \5\ J. Michael Greenwood, Julie Horney, M. Daniel Jacoubovitch, 
Frances D. Lowenstein, and Russell R. Wheeler, ``A Evaluation of 
Stenographic and Audiotape Methods for United States District Court 
Reporting'', at xi (July 1983) (study performed on behalf of the 
Federal Judicial Center, on file with the House Committee on the 
Judiciary).

Since the United States Treasury funds the courts as well as 
the Department of Justice (the most frequent party to 
litigation), these savings can be expected to be passed on to 
taxpayers generally as well as parties to depositions.
    Even more importantly, competition and free choice in the 
reporting market allow the poorest members of our society 
greater access to the court system. In a letter to Senators 
Biden and Heflin last Congress, a broad coalition of civil 
rights and liberties groups expressed support for Rule 30(b):

        [permitting taped depositions under Rule 30(b)] make[s] 
        one of the most useful but most expensive forms of 
        discovery accessible to litigants of modest means. 
        Instead of paying $500 to $1,000 per day for the 
        original and a copy of a court reporter's transcript of 
        a deposition, they could pay a few dollars for a blank 
        audio- or video-tape and arrange for a typist to make a 
        written record at far less expense . . . [Proposals to 
        overturn Rule 30(b) keep] the expense of litigation 
        unnecessarily high . . . thereby limiting the number 
        and nature of civil rights cases which can be brought 
        and interfering with the policy of Congress in 
        encouraging the private enforcement of the civil rights 
        laws.\6\
    \6\ Letter from Lawyers' Committee for Civil Rights Under Law, 
Women's Legal Defense Fund, American Civil Liberties Union, Puerto 
Rican Legal Defense and Education Fund, People for the American Way, 
NAACP Legal Defense and Educational Fund, and the National Association 
for the Advancement of Colored People to the Honorable Joseph R. Biden, 
Chairman Senate Judiciary Committee and the Honorable Howell Heflin, 
Chairman, Subcommittee on Courts and Administrative Practice (November 
16, 1993) (on file with the Senate Judiciary Committee).
    The NAACP Legal Defense Fund has subsequently withdrawn its 
opposition to overturning Rule 30(b) and indicated that the Lawyer's 
Committee for Civil Rights Under Law has done so also, however other 
civil rights' groups, such as the ACLU, have continued to express 
strong support for maintaining the rule. See letter from Norman J. 
Chachkin, Director of Litigation, NAACP Legal Defense and Educational 
Fund, Inc. to George W. Koch (July 18, 1995); letter from Laura Murphy, 
Director and Diann Y. Rust-Tierney, Associate Director/Chief 
Legislative Counsel, American Civil Liberties Union to the Honorable 
John Conyers, Jr. (July 25, 1995) (on file with House Judiciary 
Committee, Minority).

    Further, although supporters of H.R. 1445 assert that using 
video and audio tapes to record depositions is less accurate 
than traditional stenography, the weight of evidence is to the 
contrary. Of the 20-some studies conducted on this subject in 
the last twenty years, the vast majority have demonstrated that 
non-stenographic sound and sound-and-visual methods were of 
equal or superior quality to stenographic recording.\7\ Of 
particular significance is the Federal Judicial Center study 
which examined audio- and stenography-based systems in 82 civil 
and criminal cases, comparing transcripts from both methods and 
identifying discrepancies. This study found audio-based systems 
---------------------------------------------------------------------------
to be far more accurate than stenography-based systems:

    \7\ See Memorandum from National Center for State Courts regarding 
Literature Review of Electronic Court Reporting Methods, supra note 4 
(15 reports found that electronic court reporting provided either cost 
benefits, quality benefits or both compared to stenographic recording 
[all but one of the reports were prepared by or for federal or state 
judiciaries and one was prepared on behalf of a private vendor of video 
court reporting systems]; 5 reports drew contrary conclusions [4 of 
these were commissioned and paid for by the National Court Reporters 
Association and one was prepared on behalf of the State of Hawaii 
Judiciary]).
---------------------------------------------------------------------------
          The overall accuracy evaluation showed that the 
        audio-based transcript matched the audiotape in 56 
        percent of the 5,717 discrepancies that did not 
        represent discretionary deviations under project 
        transcription guidelines. The steno-based transcript 
        matched the tape in 36 percent of such discrepancies 
        and neither transcript matched the tape in 3 percent of 
        the discrepancies. The audiotape could not resolve the 
        remaining discrepancies.\8\
    \8\ ``A Comparative Evaluation of Stenographic and Audiotape 
Methods for United States District Court Reporting'', supra note 5, at 
xiv.
    It is also important to note that Rule 30 itself contains a 
number of safeguards to assure the accuracy and reliability of 
non-stenographic recording, including:
          (i) The officer presiding at the deposition must 
        retain a copy of the recording unless otherwise ordered 
        by the court or provided by stipulation;
          (ii) The presiding officer must state certain 
        identification information at the beginning of each 
        unit of recording tape or other medium;
          (iii) Any distortion of the appearance or demeanor of 
        deponents or counsel by camera or recording techniques 
        is expressly prohibited; and
          (iv) The court retains the authority to require a 
        different method of recording if the circumstances 
        warrant; and
          (iv) Any other party is permitted to designate an 
        additional method (including stenographic means) to 
        record the deposition at their expense; and
          (v) The parties are required to furnish a written 
        transcript if they intend to use a deposition recorded 
        by non-stenographic means for other than impeachment 
        purposes at trial or in a motion hearing.\9\
    \9\ See letter from the Honorable Patrick E. Higginbotham, Chair, 
Advisory Committee on Civil Rules, Judicial Conference of the United 
States, supra note 2.
---------------------------------------------------------------------------
Significantly, in this letter on behalf of the Judicial 
Conference concerning H.R. 1445, Judge Higginbotham notes that 
``[t]he Advisory Committee [on Civil Rules] is unaware of any 
problem with the operation of . . . rule [30(b)] as amended.'' 
\10\
    \10\ Id.
    Based on the foregoing, we must oppose H.R. 1445. Congress 
should not involve itself in rewriting the judicial rules, 
particularly when doing so will increase court costs and 
diminish access to justice.
                                   John Conyers, Jr.
                                   Robert C. Scott.
                                   Melvin L. Watt.
                                   Jose E. Serrano.
                                   Zoe Lofgren.