Fool’s Gold – Why Courts Cannot Turn Depositions Into a “Profit Center”

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

The recent JD Supra article suggesting courts are “sitting on a gold mine” by taking over deposition services and monetizing transcripts reflects a profound misunderstanding of the Constitution, statutory law, and the ethical architecture of litigation. Far from a gold mine, this idea is a constitutional sinkhole.

Below, I address the proposal through four lenses: (1) statutory authority, (2) constitutional due process, (3) ethical obligations, and (4) institutional integrity.

1. Statutory Authority: Courts Cannot Re-Write Civil Discovery Rules

Civil discovery is governed by statute. In California, Code of Civil Procedure § 2025.320 requires depositions to be conducted before an officer authorized to administer oaths and independent of the parties. At the federal level, Fed. R. Civ. P. 30(b)(5) mirrors this structure. Neither regime authorizes courts themselves to become vendors of deposition services.

The author’s premise — that courts can generate revenue by selling deposition services — ignores Gov. Code §§ 69941.1 and 69942, which strictly define when and how courts may charge for transcripts. Judicial Council rules and legislative appropriations set fee schedules; courts cannot invent new revenue streams. To do so would usurp legislative authority and expose courts to challenge for exceeding jurisdiction.

In other words: courts cannot simultaneously be referee, scorekeeper, and paid vendor.

2. Constitutional Due Process: Neutral Recordkeeping Is Not Optional

The proposal collapses under the weight of the Constitution. Due process demands neutral and independent recordkeeping. When courts become the custodian, seller, and profit-maker of transcripts, neutrality vanishes.

Consider the Fourteenth Amendment’s due process guarantees and the separation of powers doctrine: courts exist to adjudicate fairly, not to generate side-revenue by taxing litigants’ discovery. Any scheme that forces parties to purchase transcripts from the very tribunal deciding their case risks structural bias and conflicts of interest.

Further, the notion that AI + “light human editing” can replace sworn stenographers ignores the constitutional significance of verbatim record preservation. A mistranscribed objection or omitted word can determine admissibility, sanctions, or appellate outcomes. Courts cannot delegate that role to software without violating litigants’ rights to a full and fair record.

3. Ethical Obligations: Lawyers and Judges Cannot Endorse Inferior Records

The ABA Model Rules of Professional Conduct impose duties that this proposal would shred:

  • Rule 1.1 (Competence): Lawyers cannot rely on unvetted AI transcripts in lieu of sworn verbatim records without risking malpractice.
  • Rule 1.3 (Diligence): Delegating accuracy to automation undercuts zealous advocacy.
  • Rule 1.6 (Confidentiality): Cloud-based AI transcription exposes sensitive testimony to unauthorized access.

The ABA has already flagged these dangers. Formal Opinion 498 (on virtual practice) and Formal Opinion 512 (on AI use) warn against blind reliance on technology. Both make clear: the lawyer remains responsible for accuracy, security, and competence.

The same applies to judges. Canon 3 of the Code of Judicial Ethics requires courts to preserve public confidence in integrity and impartiality. Selling transcripts created by AI, “certified” by staff, undermines both.

4. Institutional Integrity: Undermining Public Trust

Finally, the article’s suggestion that courts are “protecting stenographers” mischaracterizes the entire profession. Court reporters — both stenographic and voice writers — are not lobbyists protecting turf. They are sworn officers ensuring the chain of custody, verbatim integrity, and appellate reliability of transcripts.

To dismiss them as obstructionist is to ignore history. Courts have reversed judgments because of incomplete or inaccurate transcripts. See, e.g., People v. Pinholster (1 Cal. 4th 865, 1992), where transcript accuracy was pivotal. Reporters are not a luxury — they are the infrastructure of due process.

By contrast, a court that monetizes transcripts risks public perception of bias. Litigants will rightly question whether adverse rulings are colored by the judiciary’s financial interest in transcript sales. The “appearance of impropriety” alone erodes confidence in the judiciary — a violation of Canon 2A of the Code of Judicial Ethics.

The “Notary Loophole” Parallel

This scheme is no different from the “digital deposition” loopholes that agencies have exploited by placing unsworn notaries in charge of depositions. Regulators, including the California Court Reporters Board, have repeatedly warned: a notary cannot certify a record under § 2025.320 because they are not impartial guardians of the transcript.

The same principle applies here. Courts cannot invent a “reporter-in-charge” model that reduces sworn oversight to rubber-stamping AI drafts. Certification requires responsibility for the entire proceeding, not retroactive approval of machine output. Anything less is fraud on the record.

Real Reform Strengthens, Not Weakens, the Record

The “gold mine” the attorney touts is fool’s gold. Courts cannot — and must not — convert themselves into deposition factories. To do so would:

  • Exceed statutory authority.
  • Violate constitutional due process.
  • Breach attorney and judicial ethics.
  • Undermine public trust in judicial neutrality.

If reform is the goal, let it be real reform: investment in recruitment of stenographers and voice writers, fair compensation (see Nevada’s 2025 SB 191 increasing reporter pay), and secure transcript repositories controlled by reporters themselves — not AI vendors or revenue-hungry bureaucracies.

In the end, the Constitution is clear: justice must not only be done, it must be seen to be done. And no one sees to it better than the sworn guardians of the record.

StenoImperium
Court Reporting. Unfiltered. Unafraid.

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

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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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