(a) When Permitted. Depositions
authorized under the provisions of the Civil Practice
Law and Rules or other law may be taken, as permitted by
section 3113(b) of the Civil Practice Law and Rules, by
means of simultaneous audio and visual electronic
recording, provided such recording is made in conformity
with this section.
(b) Other Rules Applicable. Except as
otherwise provided in this section, or where the nature
of videotaped recording makes compliance impossible or
unnecessary, all rules generally applicable to
examinations before trial shall apply to videotaped
recording of depositions.
(c) Notice of Taking Deposition. Every
notice or subpoena for the taking of a videotaped
deposition shall state that it is to be videotaped and
the name and address of the videotape operator and of
the operator's employer, if any. The operator may be an
employee of the attorney taking the deposition. Where an
application for an order to take a videotaped deposition
is made, the application and order shall contain the
same information.
(d) Conduct of the
Examination.
(1) The deposition shall begin by one of
the attorneys or the operator stating on
camera:
(i) the operator's name and
address;
(ii) the name and address of the
operator's employer;
(iii) the date, the time and place of
the deposition; and
(iv) the party on whose behalf the
deposition is being taken.
The officer before whom the deposition
is taken shall be a person authorized by statute and
shall identify himself or herself and swear the witness
on camera. If the deposition requires the use of more
than one tape, the end of each tape and the beginning of
each succeeding tape shall be announced by the
operator.
(2) Every videotaped deposition shall be
timed by means of a time-date generator which shall
permanently record hours, minutes and seconds. Each time
the videotape is stopped and resumed, such times shall
be orally announced on the tape.
(3) More than one camera may be used,
either in sequence or simultaneously.
(4) At the conclusion of the deposition,
a statement shall be made on camera that the recording
is completed. As soon as practicable thereafter, the
videotape shall be shown to the witness for examination,
unless such showing and examination are waived by the
witness and the parties.
(5) Technical data, such as recording
speeds and other information needed to replay or copy
the tape, shall be included on copies of the videotaped
deposition.
(e) Copies and Transcription. The
parties may make audio copies of the deposition and
thereafter may purchase additional audio and
audio-visual copies. A party may arrange to have a
stenographic transcription made of the deposition at his
or her own expense.
(f) Certification. The officer before
whom the videotape deposition is taken shall cause to be
attached to the original videotape recording a
certification that the witness was fully sworn or
affirmed by the officer and that the videotape recording
is a true record of the testimony given by the witness.
If the witness has not waived the right to a showing and
examination of the videotape deposition, the witness
shall also sign the certification in accordance with the
provisions of section 3116 of the Civil Practice Law and
Rules.
(g) Filing and Objections.
(1) If no objections have been made by
any of the parties during the course of the deposition,
the videotape deposition may be filed by the proponent
with the clerk of the trial court and shall be filed
upon the request of any party.
(2) If objections have been made by any
of the parties during the course of the deposition, the
videotape deposition, with the certification, shall be
submitted to the court upon the request of any of the
parties within 10 days after its recording, or within
such other period as the parties may stipulate, or as
soon thereafter as the objections may be heard by the
court, for the purpose of obtaining rulings on the
objections. An audio copy of the sound track may be
submitted in lieu of the videotape for this purpose, as
the court may prefer. The court may view such portions
of the videotape recording as it deems pertinent to the
objections made, or may listen to an audiotape
recording. The court, in its discretion, may also
require submission of a stenographic transcript of the
portion of the deposition to which objection is made,
and may read such transcript in lieu of reviewing the
videotape or audio copy.
(3)
(i) The court shall rule on the
objections prior to the date set for trial and shall
return the recording to the proponent of the videotape
with notice to the parties of its rulings and of its
instructions as to editing. The editing shall reflect
the rulings of the court and shall remove all references
to the objections. The proponent, after causing the
videotape to be edited in accordance with the court's
instructions, may cause both the original videotape
recording and the deleted version of the recording,
clearly identified, to be filed with the clerk of the
trial court, and shall do so at the request of any
party. Before such filing, the proponent shall permit
the other party to view the edited videotape.
(ii) The court may, in respect to
objectionable material, instead of ordering its
deletion, permit such material to be clearly marked so
that the audio recording may be suppressed by the
operator during the objectionable portion when the
videotape is presented at the trial. In such case the
proponent may cause both the original videotape
recording and a marked version of that recording, each
clearly identified, to be filed with the clerk of the
trial court, and shall do so at the request of any
party.
(h) Custody of Tape. When the tape is
filed with the clerk of the court, the clerk shall give
an appropriate receipt for the tape and shall provide
secure and adequate facilities for the storage of
videotape recordings.
(i) Use at Trial. The use of videotape
recordings of depositions at the trial shall be governed
by the provisions of the Civil Practice Law and Rules
and all other relevant statutes, court rules and
decisional law relating to depositions and relating to
the admissibility of evidence. The proponent of the
videotaped deposition shall have the responsibility of
providing whatever equipment and personnel may be
necessary for presenting such videotape
deposition.
(j) Applicability to Audio Taping of
Depositions. Except where clearly inapplicable because
of the lack of a video portion, these rules are equally
applicable to the taking of depositions by audio
recording alone. However, in the case of the taking of a
deposition upon notice by audio recording alone, any
party, at least five days before the date noticed for
taking the deposition, may apply to the court for an
order establishing additional or alternate procedures
for the taking of such audio deposition, and upon the
making of the application, the deposition may be taken
only in accordance with the court order.
(k) Cost. The cost of videotaping or
audio recording shall be borne by the party who served
the notice for the videotaped or audio recording of the
deposition, and such cost shall be a taxable
disbursement in the action unless the court in its
discretion orders otherwise in the interest of
justice.
(l) Transcription for Appeal. On appeal,
visual and audio depositions shall be transcribed in the
same manner as other testimony and transcripts filed in
the appellate court. The visual and audio depositions
shall remain part of the original record in the case and
shall be transmitted therewith. In lieu of the
transcribed deposition and, on leave of the appellate
court, a party may request a viewing of portions of the
visual deposition by the appellate court but, in such
case, a transcript of pertinent portions of the
deposition shall be filed as required by the
court.
Historical Note
Sec.
filed Jan. 9, 1986 eff. Jan. 6, 1986.
