Title: Opinion File 78-26 thru 78-31
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Permanent Link: http://ufdc.ufl.edu/WL00003530/00001
 Material Information
Title: Opinion File 78-26 thru 78-31
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Buddy Blain's Collections - Opinion File 78-26 thru 78-31
General Note: Box 14, Folder 5 ( Opinions 1976 - 1977 - 1976 - 1977 ), Item 82
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003530
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text


78- 26


September 18, 1978
KEY WORDS: A

MEMO c
TO: TEC
FR: LMB
RE: TRANSCRIPTIONS OF HEARINGS, CONFERENCES & DEPOSITIONS
What rules of civil procedure or statutes apply to govern
transcriptions of hearings, depositions, etc.?
1. If I take a deposition it is not mandatory to have
the courtreporter's notes transcribed. However, if they are
transcribed must the original be filed with the court/agency?
May a party have a court reporter present who takes down all
the notes and have the record transcribed supplying only the
party with a copy if no one else orders a copy?
2. If I take a court reporter to a hearing (before a
Judge, Agency, or other Public Body) and have the court reporter
type up all or a portion of that hearing, must the original be
filed with the Judge, Agency or other Public Body?
3. Would the same rules apply where a court reporter takes
down everything being said at a pre-hearing conference?


LMB/mlc














RE: Transcription of Depositions, Prehearing Conferences,
and Hearings


DEPOSITIONS:

In state civil actions the taking, reporting,
transcription, or use of depositions is governed by the Florida
Rules of Civil Procedure. The key points are:

1. Unless an Order is obtained from the Court
authorizing a different method, the testimony at the deposition
must be taken and recorded stenographically. Rule 1.310(c),
F.R.C.P. (Depositions In Aid Of Execution have different
requirements, see Rule 1.560, F.R.C.P.)

2. The testimony at the deposition will be
transcribed only if one of the parties requests that this be
done. Initial cost of transcription falls on requesting party.
, Rule 1.310(c), F.R.C.P.

3. If the testimony is transcribed, the officer
presiding at the deposition is required to file the transcript
with the court in which the action is pending. Rule 1.310(F)(1),
F.R.C.P.

4. The officer presiding at the deposition is
required to furnish a copy of the deposition to any party, or
to the deponent, upon payment of reasonable charges therefore.
Rule 1.310(F), F.R.C.P.

5. The filing of the transcript with the court does
not place the transcript into the judicial record as evidence.
Rule 1.330, F.R.C.P. describes the various uses which may be made
of the transcript. This rule contemplates that the deposition,
or part of it, will be "offered into evidence" at some point
subsequent to filing. Further, the opposing parties are given
an opportunity to object to receiving the transcript into evidence
at the trial or hearing. Rule 1.330(b), F.R.C.P.

Depositions in administrative proceedings under the
Florida Administrative Procedures Act (Ch. 120, F.S.) are to be
handled in the same manner as those occurring in state civil
actions. F.S. 120.58(b) authorizes the agency or hearing officer
to "effect discovery on the written request of any party by any
means available to the courts and in the manner provided in the
Florida Rules of Civil Procedure." (emphasis added.)






? 78 28

Presumably the transcription, filing, and use of
Sthe testimony at the deposition would be handled similarly,
as well. However, Ch. 120, F.S., is silent on this question.

If one concludes that the Rule of Civil Procedure
requiring that the original transcript be filed is a "rule of
discovery", the Model Rules of Procedure applicable to Decisions
Determining Substantial Interests can be interpreted to require
filing in the administrative proceeding.

Rule 28-5.25(1), F.A.C., provides (in part):

(1) To the extent that the rules of discovery
in the Florida Rules of Civil Procedure are not
inconsistent with Ch. 120, F.S., the rules of
discovery of the Florida Rules of Civil Procedure
shall be applicable (emphasis added).

In the absence of specific law or rule, the better
practice would be to request the Hearing Officer to establish
the ground rules in his order effecting discovery. See
28-5.25(1), F.A.C., which provides in part:

The hearing officer may issue appropriate
orders to effectuate the purposes of discovery
and to prevent delay.

See also, 221-2.12(2), F.A.C. for identical
language in the Rules of the Division of
Administrative Hearings applicable to
Adversary Hearings.


PREHEARING CONFERENCES:

Pretrial conferences in Florida civil actions are
governed by Rule 1.200, F.R.C.P. This Rule is silent with regard
to court reporters and transcripts. It has been my experience
that an official court reporter will attend and transcribe the
proceedings at the request (and expense) of a party to the action.

This is supported by F.S. 29.02 which provides in
pertinent part:

29.02 DUTIES OF COURT REPORTER
The official court reporter shall .
report the testimony and proceedings with
objections made, the rulings of the court,
the exceptions taken, and oral or written
charges of the court in the trial of any






7 -29


civil case in said court upon the demand
or request of the attorney for either
party.

It is my understanding that in Hillsborough County
the court reporter's notes will be retained in the reporter s
office for about two years if a written transcription is not
requested. The notes are then destroyed.

Prehearing conferences in administrative actions are
governed by Rules 221-2.17 and 28-5.11, F.A.C.

Rule 221-2.17,F.A.C.,provides:

221-2.17 Prehearing conference. The Division,
in its discretion, may, on its own motion or upon
request of any party of record, order a pre-hearing
conference. All matters settled, stipulated, or
ordered at any such conference shall be reduced to
writing and amde a part of the record. Prior to
a pre-hearing conference, the hearing officer may
order the parties of record to provide a joint
statement of relevent issues of law and fact, on
which there is agreement and on which there is
dispute.

Rule 28-5.11,F.A.C., provides:

28-5.11 Prehearing Conference.
(1) Once a proceeding governed by Section
28-5 has been commenced, the Hearing Officer
may conduct one or more pre-hearing conferences
-or the purpose of clarification, settlement,
adjustment, stipulation, examination of exhibits
and documents to be used in the hearing,
exchange of names and addresses of witnesses,
or agreements of parties to be submitted to
the hearing officer.

(2) The matters accepted by the hearing
officer pursuant to sub-section one (1) shall
become part of the record.

Neither of these rules requires that a reporter be
present to record the statements of the parties. However, if the
Prehearing Conference is regarded as part of a formal proceeding
in which the substantial interests of a party are being determined
by an agency (under 120.57, F.S.), the agency may have an obliga-
tion to preserve the statements.

F.S. 120.57(1)(b)(6) requires the agency to accurately
and completely preserve all testimony in the "proceeding".





7 -___ 30

In any event, this requirement would not apply to
conferences at which a hearing officer (member of agency head,
r, etc.) was not present. A conference of the parties in the
absence of the "Agency" would not, in my opinion, constitute a
5120.57 proceeding.


HEARINGS:

The official court reporters in each judicial circuit
are charged with the responsibility of reporting the proceedings
in civil actions, upon request of the attorney for either party.
F.S. 29.02.

Locally, the practice in Hillsborough County is for
the reporter to retain the stenographic notes for about two (2)
years. They are then destroyed. Of course, for a "reasonable
charge", the reporter will transcribe the notes. These
transcriptions are then filed in the court file by the reporter.

In formal administrative proceedings under $120.57,
F.S., the agency is required to "accurately and completely
preserve all testimony in the proceeding, and, on the request
of any party, it shall make a full or partial transcript available
at no more than actual cost". F.S.. 120.57(1)(b)(6). Further,
the "official transcript" is designated by statute as part of
r the "record". F.S. 120.57(1)(b)(5)(i).
Clearly, use of a certified court reporter to produce
written transcripts would satisfy the agency's obligation under
the statute. Whether something less would suffice is less certain.

The Model Rules of Procedure applicable to 120.57
proceedings and the Rules of the Division of Administrative Hearings
applicable to adversary hearings lead me to conclude that:

1. The agency need not employ a court reporter,
unless a party requests one and agrees to
bear the per diem expense.

2. If a court reporter is provided, the
stenographic notes become the "official
transcript" of the proceeding.

3. Each party is responsible for obtaining their
own written transcripts from the notes.

4. The agency must preserve the notes, but
need not purchase a transcript of them.

5. The agency may use tape recordings, or other
devices, to preserve all the testimony.





S -- 31

The relevant rules follow:

f 221-2.28
221-2.28 Recording the proceedings. It
is the responsibility of the agency to record
the proceedings. The agency may do so by instrument
or court reporter. Any party of record may request
the agency to provide a court reporter for a hearing
if the agency has not elected to do so. In such
cases, the requesting party shall be responsible
for payment of the court reporter's per diem expense
and the court reporter's notes shall become the
official transcript.

$28-5.25(7)
(7) Recordation. The proceedings shall
be reported by a certified court reporter or
recording instruments. Any party to a hearing
may, at his own expense, provide a certified court
reporter. The hearing officer, in his discretion,
may provide a certified court reporter. At
hearings during which the services of a court
reporter have been retained, any party who wishes
a written transcript of the testimony shall order
the same at his own expense. If a court reporter
r records the proceedings, his recordation shall
become the official transcript.

528-5.33
28-5.33 Transcript of Proceeding.
The official transcript of the proceeding may
be preserved by tape recording, shorthand, court
reporter, or other devise that will preserve all
testimony or other matter brought before the Agency
or hearing officer.




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