Federal Rules Quick Reference

The party noticing the deposition states in the notice how the testimony will be recorded — audio, audiovisual, or stenographic — and bears the recording cost unless the court orders otherwise.

Your engagement traces back to this line. If the notice doesn't say audiovisual, nobody ordered video, and the party who did order it is the party who pays you.

With prior notice to the deponent and the other parties, any party may designate an additional method of recording — at that party's own expense.

This is how a video deposition happens when the noticing party only ordered a stenographer. The party adding video pays for it, and you should have that in writing before you set up.

By stipulation of the parties or by court order, a deposition may be taken by telephone or other remote means. For the purposes of the deposition rules, the testimony is taken where the deponent answers the questions.

The federal rule permits remote testimony. Local rules and standing orders frequently constrain it, and the officer's physical location relative to the deponent is a recurring fight. Confirm the stipulation exists before the call.

Unless the parties stipulate otherwise, the deposition must begin with an on-the-record statement by the officer that includes: (i) the officer's name and business address; (ii) the date, time, and place of the deposition; (iii) the deponent's name; (iv) the officer's administration of the oath or affirmation to the deponent; and (v) the identity of all persons present.

This is the rule behind every on-the-record script you will ever read. Miss an element and you have handed opposing counsel a procedural argument about your record.

If the deposition is recorded non-stenographically, the officer must repeat items (i) through (iii) of the opening statement at the beginning of each unit of the recording medium.

Every new card, tape, or file gets the officer's name and address, the date/time/place, and the deponent's name — on the record. This is the single most commonly skipped requirement in video depositions.

At the end of the deposition the officer must state on the record that the deposition is complete and set out any stipulations made by the attorneys about custody of the transcript or recording and about the exhibits.

"We are off the record" is not a closing statement. The rule wants completion stated and custody stipulations captured — and those stipulations govern what you do with the media afterward.

A party may name an organization as the deponent and describe with reasonable particularity the matters for examination. The organization designates one or more people to testify on its behalf, and the parties must confer in good faith about the matters.

A 30(b)(6) frequently means multiple designees over multiple days, sometimes back to back. Confirm how many witnesses and how many days before you quote the job.

The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence, except Rules 103 and 615. The officer must record the testimony by the method designated in the notice.

FRE 615 — excluding witnesses — expressly does not apply at a deposition. Who may sit in the room is a question for counsel and the protective order, not for you.

Unless otherwise stipulated or ordered, a deposition is limited to one day of seven hours. The court must allow additional time if needed to fairly examine the deponent or if another person or circumstance impedes the examination.

Seven hours on the record. Breaks, lunch, and argument are not counted against it — which is why your run-time log and your on-site hours are two different numbers, and why counsel will ask you for the first one.

The officer must certify in writing that the witness was duly sworn and that the deposition accurately records the witness's testimony. The certificate must accompany the record. The officer must then securely seal the deposition in an envelope or package bearing the title of the action and marked "Deposition of [witness's name]," and send it to the attorney who arranged for the transcript or recording, who must store it under conditions that will protect it against loss, destruction, tampering, or deterioration.

The certificate is yours, personally. So is the labeling and the secure delivery. This rule is the origin of the chain-of-custody documentation every credentialed videographer is expected to keep.

Unless the court orders otherwise, a party must provide a transcript of any deposition testimony it offers, but may also provide the testimony in nonstenographic form. On any party's request, deposition testimony offered in a jury trial for any purpose other than impeachment must be presented in nonstenographic form, if available, unless the court for good cause orders otherwise.

This is the rule that pays for video depositions. If a video exists, any party can require that it — not a read-aloud transcript — be what the jury sees. Every deposition you record is a potential trial exhibit.

A party may use a deposition for any purpose if the court finds the witness is dead; is more than 100 miles from the place of hearing or outside the United States; cannot attend because of age, illness, infirmity, or imprisonment; could not be subpoenaed; or that exceptional circumstances make it desirable in the interest of justice.

These are the cases where your recording becomes the witness. Preservation depositions for an ill or elderly deponent get shot with that outcome assumed — frame, light, and audio it like trial footage, because it is.

If a party offers part of a deposition in evidence, an adverse party may require the offeror to introduce other parts that in fairness should be considered with the part introduced, and any party may itself introduce any other parts.

This is why designation work arrives as competing colored passages, and why your clip list has to be built to be re-cut. Never flatten a designation reel to a single file with no way back to the source timecode.

A subpoena may command a person to attend a deposition only within 100 miles of where that person resides, is employed, or regularly transacts business in person — or within the state where the person resides, is employed, or regularly transacts business, if the person is a party or a party's officer.

Non-party depositions happen where the witness is. Plan travel, gear transport, and your day rate around the geographic limits that already constrain where counsel can compel attendance.

Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action.

The first hurdle for any piece of evidentiary video. It is a low bar — the fight is almost always at Rule 403, not here.

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Where day-in-the-life video lives or dies. Scored music, dramatic grading, sympathetic narration, and selective editing are exactly the choices that turn probative footage into excludable footage. Shoot it straight.

If a party introduces all or part of a statement, an adverse party may require the introduction — at that time — of any other part, or any other statement, that in fairness ought to be considered at the same time.

The evidentiary cousin of counter-designation. Expect to be asked to play adjacent passages on short notice, in the hot seat, without a re-render.

To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

Your documentation is the authentication. Capture notes, timestamps, hashes, and an unbroken custody record are what let counsel make this showing without calling you as a witness.

901(b)(1): testimony of a witness with knowledge that an item is what it is claimed to be. 901(b)(4): distinctive characteristics — the appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

In practice a scene video is authenticated by someone who was there, or by what is visibly in the frame. Both get easier when your footage includes establishing context and your log records who was present.

Evidence describing a process or system and showing that it produces an accurate result satisfies the authentication requirement.

This is the hook for drone flights, time-lapse rigs, laser scans, and any automated capture. Document the process itself — settings, calibration, and procedure — not just the output.

A record generated by an electronic process or system that produces an accurate result is self-authenticating if certified by a qualified person in the manner required by Rule 902(11) or (12), with advance notice to the opposing party.

Added in 2017 to spare parties the cost of a live foundation witness. A properly drafted certification can keep you out of the witness chair — which is a service worth offering, and a reason to keep rigorous records.

Data copied from an electronic device, storage medium, or file is self-authenticating if authenticated by a process of digital identification — such as a hash value — and certified by a qualified person, with advance notice to the opposing party.

Hash your masters at ingest and record the values. It costs you a minute per file and converts your copies into self-authenticating evidence. This is the most concrete technical thing a videographer can do to make a lawyer's life easier.

1002: an original is required to prove the content of a writing, recording, or photograph, unless the rules or a statute provide otherwise. 1003: a duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate.

Duplicates are fine — until someone questions the original. That is precisely why the camera-original file gets preserved untouched and never becomes the working copy.

For electronically stored information, "original" means any printout — or other output readable by sight — if it accurately reflects the information. An "original" of a photograph includes the negative or a print from it.

Digital video has no single physical original. What matters is accurate reflection of the stored information, which is a documentation question, not a media question.