By now, the talking points are familiar. When a non-stenographic deposition transcript is excluded from evidence, the response from digital reporting agencies is not introspection, but insistence: The problem isn’t the method — it’s the critics.
That is the posture taken in Esquire Deposition Solutions’ December 9, 2025 opinion piece, “Careful Digital Reporting Is Clearly Lawful in Texas.” The article attempts to reframe a trial court’s exclusion of a non-stenographic transcript not as a warning, but as an aberration — a misunderstanding that, Esquire argues, the Texas Supreme Court should swiftly correct.
But beneath the polished language and selective rule citations lies a fundamental problem: digital reporting, as practiced by private agencies, does not satisfy the rules of evidence, does not create a contemporaneous verbatim record, and does not provide the accountability the justice system requires. Calling it “lawful” does not make it reliable. And reliability — not convenience — is what courts exist to protect.
A Transcript That Is Not Taken Down Is Not Evidence — It Is Reconstruction
The central flaw in Esquire’s argument is one it never directly confronts: a transcript created after the fact from an audio recording is not a verbatim record of testimony as it was spoken. It is a reconstruction.
In evidentiary terms, that matters.
If words are not contemporaneously captured by a licensed stenographic court reporter at the moment they are spoken, they exist only as recorded sound until someone later decides what was said. That later act — listening, interpreting, typing, correcting — is precisely where hearsay problems arise.
A stenographic transcript is not hearsay because the reporter is a neutral officer of the proceeding who captures testimony in real time and certifies, under penalty of perjury and license discipline, that the words were taken down verbatim. The record is created as the testimony happens.
By contrast, a digital transcript is created after the event, filtered through audio quality, equipment performance, annotation decisions, and a transcriptionist who was not present for the testimony itself. That chain of interpretation breaks the evidenti link between the spoken word and the written record.
If it was not taken down stenographically at the time it was spoken, it is as if it was not said — at least not in a form that satisfies the evidenti safeguards courts rely on.
Rules Allow Recording. They Do Not Bless Inferior Records.
Esquire leans heavily on Texas Rules of Civil Procedure 199.1(c) and 203.6, which allow parties to record depositions by non-stenographic means. That much is true — and also beside the point.
Permitting a recording is not the same as endorsing the use of a privately produced transcript as a reliable substitute for a stenographic record. The rules allow non-stenographic recording so parties may preserve testimony. They do not eliminate the court’s responsibility to assess whether a transcript derived from that recording is trustworthy, complete, or admissible.
Rule 203.6 explicitly preserves judicial discretion to require a complete transcript from a certified court reporter for good cause. That is not an exception that “proves the rule.” It is a safeguard — one that exists precisely because non-stenographic transcripts are inherently vulnerable to dispute.
When a court excludes such a transcript, it is not rewriting the rules. It is exercising them.
Certification That Carries No Legal Weight Is Not Accountability
Esquire repeatedly invokes AAERT certification as proof of professionalism and accountability. But AAERT certification is not recognized as a court reporter license in Texas, California, or more than 25 other states.
AAERT is a private trade organization. Its credentials do not confer statutory authority. Its members are not subject to state reporter licensing boards. They are not bound by the same ethical rules, disciplinary structures, or public oversight mechanisms as licensed stenographic reporters.
In Texas, only a licensed CSR can act as the officer who certifies a stenographic deposition. In California, the distinction is even clearer: electronic recording is not a verbatim record, and non-stenographic transcripts are explicitly restricted in their use.
Calling an AAERT-certified digital recorder a “court reporter” does not make it so. Titles do not create legal responsibility. Licensure does.
Agencies Cannot Be the “Responsible Charge”
Another critical omission in Esquire’s article is the issue of responsible charge.
In stenographic practice, the court reporter — not the agency — is the officer of the record. The reporter’s name is on the certificate. The reporter’s license is on the line. The reporter can be subpoenaed, disciplined, or disqualified.
In digital reporting, the agency controls the equipment, the workflow, the annotations, the transcriptionist, the review process, and often the certification language itself. That is not independence. That is consolidation of power — with no individual legally accountable for the integrity of the record.
Agencies cannot serve as the responsible charge because agencies cannot testify, cannot be disciplined by licensing boards, and cannot be ethically neutral when they are paid by the party seeking the transcript.
“In the Room” Does Not Mean “On the Record”
Esquire emphasizes that a human professional is “in the room.” But presence is not the same as authorship of the record.
A stenographer does not merely observe testimony. The stenographer creates the record. Every interruption, every overlap, every inflection is captured contemporaneously. When disputes arise, the reporter’s notes — not a recording — are the primary authority.
A digital recorder, by contrast, manages equipment. The record does not exist until later. And when later disagreements arise, the answer is always the same: “Let’s listen to the audio.”
That is not a record. That is a playback.
Access to Justice Does Not Mean Lowering the Bar
The final appeal in Esquire’s article is emotional rather than legal: shortages, rural access, cost pressures. These are real challenges. But the solution to a shortage of licensed professionals is not to redefine professionalism downward.
Courts do not relax evidentiary standards because compliance is inconvenient. They do not replace sworn officers with vendors because it is cheaper. And they do not gamble with the integrity of the record — the foundation of appellate review — in the name of efficiency.
If digital reporting were truly equivalent, courts would not be excluding its transcripts. Judges are not anti-technology. They are pro-reliability.
The Record Is Not a Commodity
At its core, this debate is not about devices. It is about what the justice system considers trustworthy.
A verbatim record is not a file. It is a constitutional safeguard. It exists so that years later — on appeal, in post-judgment motions, in disciplinary proceedings — there is no question about what was said, who said it, and how it was said.
Digital reporting asks courts to trade that certainty for convenience. The Montgomery County ruling suggests at least one court refused.
That is not an overreaction. It is a warning.
And it should be heeded.
StenoImperium
Court Reporting. Unfiltered. Unafraid.
Disclaimer
This article reflects my perspective and analysis as a court reporter and eyewitness. It is not legal advice, nor is it intended to substitute for the advice of an attorney.
This article includes analysis and commentary based on observed events, public records, and legal statutes.
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- Legal & Editorial Disclaimer (Recommended for Publication)
- This article is an opinion-based analysis of publicly available statements, court rules, and professional standards related to deposition practice and evidentiary reliability. It does not allege misconduct by any individual or entity and does not constitute legal advice. References to “digital reporting” and “non-stenographic transcripts” are general in nature and address systemic concerns regarding evidentiary integrity, licensure, and accountability. Readers should consult applicable statutes, rules of procedure, and qualified legal counsel for jurisdiction-specific guidance.
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