How Zoom Depositions, Consent Laws, and Competing Recordings Are a Growing Dilemma for Court Reporters

Posted bystenoimperiumPosted inAI and the Legal System, Court Reporting, Judicial Ethics Watch, Legal ServicesTags:, , , , , , , , , , , , , , , ,

The modern legal landscape has been reshaped by remote technology. Zoom depositions (affectionately called “Zepos” by court reporters) are now routine, saving attorneys time and money. Yet with convenience comes complication, particularly when it comes to recording. A recent real-world scenario highlights the clash between technology, ethics, and state law — and why court reporters are often caught in the middle.

The Incident – Two Recordings, One Deposition

A court reporter logged into Zoom, ready to cover a deposition. Before swearing in the witness, opposing counsel asked: “You’re making a recording too, right?” The reporter clarified: “Yes, but it is strictly work product. I will not release it, unless ordered by the court.”

Then came the surprise: opposing counsel announced that he was also recording the deposition “for note-taking purposes.” Immediately, tensions rose.

The attending attorney objected: “I do not consent to that.” Florida is a two-party consent state, meaning both parties must agree before recording any private communication. Opposing counsel responded that if everyone consents to the reporter’s recording, that consent extends to his own. The reporter disagreed, explaining that multiple recordings undermine the integrity of the record. Ultimately, the deposition was cancelled.

The question left lingering: Who was right?

The Role of the Court Reporter’s Backup Recording

Court reporters frequently create their own audio backup. It is not the official record but a tool — a safeguard to double-check testimony against steno notes. In most states, that audio is considered the reporter’s work product, protected from disclosure unless a judge orders otherwise.

Why is this so important? Because the reporter’s recording exists solely to protect transcript accuracy. It is deleted after the transcript is certified and delivered, unlike recordings made by attorneys or third parties that could be copied, stored, or even run through artificial intelligence tools without any safeguard.

When a lawyer records a deposition independently, they often justify it as “note-taking.” But that secondary file introduces risks:

  • Data security – Was the recording made over unsecured Wi-Fi? Could confidential testimony leak?
  • AI use – Will it be uploaded into transcription or summarization software that keeps voiceprints indefinitely?
  • Record integrity – If multiple recordings exist, disputes may arise about which is accurate.

The reporter, as the neutral officer of the court, is charged with protecting the integrity of the record. Competing recordings blur that line.

Consent Laws – Whose Rules Apply?

Another wrinkle in this scenario is consent. The United States has a patchwork of recording laws. Florida, for example, is indeed a two-party consent state. Both participants must agree before recording any private communication. Other states, like New York, require only one party’s consent.

But what happens when a deposition is remote? Imagine a witness in New York, an attorney in Florida, and a reporter in California. Which law governs? Courts have wrestled with this question, and answers vary. Some argue the law of the witness’s physical location controls. Others contend that any participant’s state laws could apply. The safest course? Assume the strictest consent rules apply and obtain agreement from all parties on the record.

Professional Boundaries and the Reporter’s Obligation

Court reporters often feel pressure to “go along” with attorneys to avoid confrontation. But our duty is not to please one side; it is to protect the integrity of the record and the process.

By halting the deposition when objections were raised, the reporter in this case demonstrated sound judgment. Proceeding would have risked creating a transcript vulnerable to later challenge — or worse, ethical scrutiny of the reporter’s role.

That decision undoubtedly wasted time and money for the attorneys involved, but the long-term consequences of proceeding under objection could have been far more costly.

Ethical and Practical Concerns for Attorneys

Attorneys also face risks when allowing extra recordings:

  • Admissibility: A secondary recording could later be introduced in court, raising chain-of-custody issues.
  • Confidentiality: Sensitive testimony could be compromised if recordings are not safeguarded.
  • Professional responsibility: Attorneys are bound by ethical duties of client confidentiality. Storing raw audio on unsecured devices or uploading it to consumer transcription software could breach those duties.

It is not uncommon to hear attorneys say, “Don’t worry, I’m still ordering the transcript.” But purchasing the transcript does not erase the ethical or security problems created by an unauthorized recording.

Common Misconceptions

Several misconceptions came to light in the discussion surrounding this scenario:

  1. “If you consent to the reporter’s recording, you’ve consented to mine.”
    False. Consent is specific, not transferable. Agreeing to one recording does not equal agreeing to another, especially when controlled by different people.
  2. “Everyone knows Zoom is recording anyway.”
    Not true. Zoom only notifies participants if the host enables its recording function. Court reporters often use separate software that does not trigger the Zoom notification. Attorneys should never assume.
  3. “Florida has no rules; people record all the time.”
    This reflects the reality that violations are frequent, not that the law doesn’t exist. Consent laws remain enforceable regardless of how often they are ignored.
  4. “Canceling wastes money; you should just go forward.”
    That reasoning overlooks the long-term risks. A transcript tainted by unauthorized recording could end up unusable, forcing even greater expense.

Best Practices Going Forward

This incident highlights the need for clearer rules of the road. Until the profession or courts establish uniform standards, here are best practices for court reporters and attorneys alike:

  1. Set expectations in advance. Before the deposition, circulate a notice addressing whether the proceeding will be recorded and by whom.
  2. Clarify on the record. Begin every deposition with a statement identifying the reporter as the official recordkeeper and confirming that no other recordings will be made without consent.
  3. Understand state law. When in doubt, follow the strictest consent standard. If even one participant objects, halt the deposition until the issue is resolved.
  4. Protect work product. Reporters should treat backup audio as confidential and disclose only if compelled by law.
  5. Encourage attorney education. Many lawyers are unaware of these nuances. Professional associations and CLE courses should cover the ethics of remote depositions and recording.

When parties ask to make their own recordings during a deposition or court proceeding, it creates confusion and potential conflict. The court reporter’s role as the sole guardian of the record is well established, yet remote technology and accessibility requests have blurred those boundaries. The key question becomes: who, if anyone, has the authority to permit a secondary recording, and under what circumstances?

1. The Default Rule: Only the Reporter Is the Record

  • By law and by protocol, the court reporter is the sole creator and custodian of the official record.
  • Your backup audio, if you make one, is considered confidential work product and not a substitute for the transcript.
  • Parties (including attorneys) do not have the right to record proceedings for their own “note-taking.” Doing so without consent can violate state wiretap/consent laws, professional rules, and court protocols.

2. The Exception: Judicial Permission

  • A judge does have the authority to make orders that override the general prohibition, usually to accommodate a disability or an ADA request.
  • In those situations, it is the judge’s order, not the attorney’s choice, that authorizes the secondary recording.
  • This is a key protection for you as the reporter: it makes clear you are not “allowing” or “agreeing” to a second record — the court is ordering it.

3. Why Judicial Permission Is Essential

  • Legality: Without the judge’s explicit order, a party’s unilateral recording could run afoul of two-party consent laws in states like Florida, Pennsylvania, or California.
  • Protocol: Rules of court (and many state reporter boards) specify that no electronic recording may occur when a stenographer is present, except by order of the court.
  • Ethics & Neutrality: Allowing it without judicial authority could place the reporter in an adversarial position or expose you to a complaint.

4. Best Practice for Reporters

When a party requests permission to record:

  • Do not agree or refuse yourself. Instead, say: “As the court reporter, I cannot authorize another recording. If you wish to make your own record, that decision must come from the judge.”
  • If the judge orders it, note the order on the record: “Pursuant to the Court’s order, counsel will be permitted to make a secondary recording for note-taking purposes.”

5. Secondary Recordings Require Judicial Permission

When a party asks to make their own recording, the reporter cannot authorize it — that authority rests solely with the judge. By default, unauthorized recordings violate both protocol and, in many jurisdictions, state consent laws. The only legitimate exception occurs when the court expressly orders it, often as an accommodation. This ensures responsibility rests with the judge, while the reporter remains the neutral officer safeguarding the record.

Why This Matters

Depositions are not casual conversations; they are formal proceedings that may determine the outcome of a case. The integrity of the record is paramount. Introducing multiple recordings risks confusion, ethical breaches, and even violations of state law.

Court reporters, as officers of the court, must sometimes make unpopular calls — even to the point of halting proceedings. Doing so is not obstruction; it is professional duty. Attorneys, too, should recognize that convenience does not outweigh the legal and ethical frameworks that govern our work.

Remote technology has made depositions more efficient, but it has also blurred lines that were once clear. Until there is a definitive body of law or procedural rule, the safest course is caution, transparency, and deference to the reporter as the sole guardian of the record.

The Zoom deposition that never happened may feel like a waste of time, but it was actually a cautionary tale. The court reporter avoided the greater danger of producing a transcript vulnerable to challenge. Attorneys were reminded that consent laws matter, even online. And the profession was given yet another reason to push for clear, uniform standards on remote deposition recording.

The lesson? In the age of Zoom, integrity still trumps convenience. The record — and the role of the court reporter in protecting it — must remain sacrosanct.

Here’s a professional but firm script reporters can use when faced with attorneys or parties attempting to make their own recordings in Zoom depositions. It balances neutrality, authority, and professionalism.

Court Reporter Script for Unauthorized Recording in Zoom Depositions

Opening Clarification (before going on the record):

“Before we begin, I want to make clear that I am the official court reporter for this proceeding. I may make an audio backup, but that is strictly my confidential work product, used only to ensure transcript accuracy, and it will not be released except by court order.”

If an Attorney Announces They’re Recording:

“Counsel, I need to note for the record that only the court reporter is authorized to capture the record. Any additional recording requires the consent of all parties and may be restricted by state or federal law, depending on where participants are located. I cannot proceed if there are multiple recordings.”

If One Side Objects to the Recording:

“Since there is an objection, I cannot proceed under these circumstances. For the integrity of the record and to protect all parties, we must resolve this issue before moving forward. I recommend you confer off the record and, if necessary, seek a ruling or stipulation.”

If Pressed to Continue Anyway:

“As the neutral officer of the court, my duty is to protect the record. Proceeding while there is a dispute over unauthorized recording could compromise both the transcript and the admissibility of this proceeding. Unless all parties agree, I will need to suspend the deposition until the issue is resolved.”

If Asked About Legal Authority:

“My role is not to interpret the law, but to ensure the integrity of the official record. Consent laws vary by jurisdiction, and multiple recordings can create ethical and confidentiality concerns. I must abide by professional standards and board regulations, which direct me to suspend if there is a dispute.”

Closing Statement (if cancelling):

“For the record, this deposition is being suspended due to a disagreement over recording. I will await further instruction or court order before resuming.”

This script ensures you remain neutral, professional, and protective of the record, while putting the responsibility back on the attorneys to resolve the dispute.

StenoImperium
Court Reporting. Unfiltered. Unafraid.

Disclaimer

“This article includes analysis and commentary based on observed events, public records, and legal statutes.”

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Published by stenoimperium

We exist to facilitate the fortifying of the Stenography profession and ensure its survival for the next hundred years! As court reporters, we've handed the relationship role with our customers, or attorneys, over to the agencies and their sales reps.  This has done a lot of damage to our industry.  It has taken away our ability to have those relationships, the ability to be humanized and valued.  We've become a replaceable commodity. Merely saying we are the “Gold Standard” tells them that we’re the best, but there are alternatives.  Who we are though, is much, much more powerful than that!  We are the Responsible Charge.  “Responsible Charge” means responsibility for the direction, control, supervision, and possession of stenographic & transcription work, as the case may be, to assure that the work product has been critically examined and evaluated for compliance with appropriate professional standards by a licensee in the profession, and by sealing and signing the documents, the professional stenographer accepts responsibility for the stenographic or transcription work, respectively, represented by the documents and that applicable stenographic and professional standards have been met.  This designation exists in other professions, such as engineering, land surveying, public water works, landscape architects, land surveyors, fire preventionists, geologists, architects, and more.  In the case of professional engineers, the engineering association adopted a Responsible Charge position statement that says, “A professional engineer is only considered to be in responsible charge of an engineering work if the professional engineer makes independent professional decisions regarding the engineering work without requiring instruction or approval from another authority and maintains control over those decisions by the professional engineer’s physical presence at the location where the engineering work is performed or by electronic communication with the individual executing the engineering work.” If we were to adopt a Responsible Charge position statement for our industry, we could start with a draft that looks something like this: "A professional court reporter, or stenographer, is only considered to be in responsible charge of court reporting work if the professional court reporter makes independent professional decisions regarding the court reporting work without requiring instruction or approval from another authority and maintains control over those decisions by the professional court reporter’s physical presence at the location where the court reporting work is performed or by electronic communication with the individual executing the court reporting work.” Shared purpose The cornerstone of a strategic narrative is a shared purpose. This shared purpose is the outcome that you and your customer are working toward together. It’s more than a value proposition of what you deliver to them. Or a mission of what you do for the world. It’s the journey that you are on with them. By having a shared purpose, the relationship shifts from consumer to co-creator. In court reporting, our mission is “to bring justice to every litigant in the U.S.”  That purpose is shared by all involved in the litigation process – judges, attorneys, everyone.  Who we are is the Responsible Charge.  How we do that is by Protecting the Record.

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