Defense Digest

Delaware's Ban On Court Reporter Contracts
By Ana M. McCann, Esq.*

 On October 15, 2001, the Delaware Supreme Court promulgated Administrative Directive No. 132 as a one-year interim rule.  The Directive sought to govern private parties’ retention of court reporters.  On November 1, 2002, the Delaware Supreme Court made the directive permanent.

The Directive created the Board on Certified Court Reporters, established certain minimum qualifications for court reporters, and prohibited certain contracts between court reporters, litigants, and others that compromise or appear to compromise the impartiality of court reporters.  The Board was created to supervise the certification and conduct of court reporters.  It is made up of five members:  four court reporters and one attorney admitted to practice in Delaware.  The Board is appointed by the Delaware Supreme Court, and the members hold office for a term of four years.  Members of the Board may not be appointed for more than two consecutive terms.

Under rules established by the Board, all certified court reporters have a certification card and certification number.  They are required to list on all transcripts their certification number and certify that they have reported that they are certified.  Transcripts taken by court reporters who are not certified are not permitted to be used in Delaware court proceedings.

More importantly, the Directive prohibits attorneys from using a particular court reporter or court reporting firm because a client or its insurance company has a contract or special rate agreement with that court reporting firm.  Court reporters are prohibited from entering into contracts which cover multiple cases or administrative proceedings and/or that provide special financial terms or other services that are not offered at the same time and on the same terms to all other parties in the litigation.

The Directive does not prohibit court reporters or reporting companies from providing competitive rates to litigants in a particular case.  It simply requires that the same terms be offered to all litigants in the case.  Therefore, whatever rates and terms are available to defendants must be offered simultaneously to plaintiffs, and vice versa.

Since all such contracts and agreements are prohibited by the Directive, any transcripts produced in violation of the Directive will not be admissible in any Delaware state court proceeding.

The Directive applies to all proceedings relating to cases in the Delaware state courts and to all administrative proceedings where an appeal may be taken to a Delaware court.

The Delaware Supreme Court’s purpose in issuing the Directive is for the protection of the public in general, for the protection of all litigants whose rights to personal freedom and property are affected by the competency of court reporters, and to promote the impartial and prompt operation of the judicial system of the state of Delaware.

Recently the Board has learned of, and is investigating, several instances in which attorneys have been told that they may only use a particular court reporter or court reporting firm because the client or its insurance company has a contract or special rate agreement with that court reporting firm.  The Board has requested that any Delaware attorney who learns of such contracts, or suspects that such contracts exist, report it to the Board.

*Ana is an associate in our Wilmington, Delaware office.  She can be reached at (302) 552-4322 or amccann@mdwcg.com.