(a) When Permitted. Depositions authorized under the provisions of the CPLR or other law may be taken, as permitted by CPLR 3113(b), by means of simultaneous audio and visual (audiovisual) 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 audiovisual recording makes compliance impossible or unnecessary, all rules generally applicable to examinations before trial shall apply to audiovisual recording of depositions.
(c) Notice of Taking Depositions. Every notice or subpoena for the taking of a deposition shall state that it is to be recorded by audiovisual means and the name and address of the operator and of the operator’s employer, if any. The operator may be an employee of the attorney taking the deposition or of the Department of Law. Where an application for an order to take an audiovisual 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 identified as a person authorized by statute to swear the witness and shall swear the witness on camera.
(2) Every audiovisual deposition shall be recorded with a time-date generator which shall permanently display the hours, minutes, and seconds. Each time the recording is stopped and resumed, such times shall be announced on the recording. Additionally, the operator shall announce the beginning and the end of each audiovisual recording.
(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 recording 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 recording, shall be included on copies of the recorded deposition.
(e) Copies and Transcription. The parties may make audio copies of the deposition and thereafter may purchase additional audio and/or audiovisual copies. A party may arrange to have a stenographic transcription made of the deposition at the party’s own expense.
(f) Certification. The officer before whom the deposition is taken shall cause to be attached to the original audiovisual recording a certification that the witness was fully sworn or affirmed by the officer and that the 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 deposition, the witness shall also sign the certification in accordance with the provisions of CPLR 3116.
(g) Filing and Objections.
(1) If no objections have been made by any of the parties during the course of the deposition, the audiovisual recording and one copy may be filed by the proponent with the clerk 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 audiovisual recording, 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 may be submitted in lieu of the audiovisual recording for this purpose, as the court may prefer. The court may also require submission of a stenographic transcript of the portion of the deposition to which objection is made.
(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 audiovisual recording 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 audiovisual recording to be edited in accordance with the court’s instructions, may cause both the original recording and the edited version of the recording, and a copy of each, clearly identified, to be filed with the clerk, and shall do so at the request of any party. Before such filing, the proponent shall permit the other party to view the edited recording.
(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 audiovisual recording is presented at the trial. In such case the proponent may cause both the original and a marked version of that recording, and a copy of each, clearly identified, to be filed with the clerk of the court, and shall do so at the request of any party.
(h) Custody of the audiovisual recording. When the audiovisual recording is filed with the clerk of the court, the clerk shall give an appropriate receipt and shall provide secure and adequate facilities for the storage of the recordings.
(i) Use at trial. The use of audiovisual recording of depositions at the trial shall be governed by the provisions of the CPLR and all other relevant statutes, court rules and decisional law relating to depositions and relating to the admissibility of evidence. The proponent of the audiovisual deposition shall have the responsibility of providing whatever equipment and personnel may be necessary for presenting such recored deposition.
(j) Applicability to audio recording of depositions. Except where clearly inapplicable because of the lack of a visual 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 recording a deposition shall be borne by the party that served the notice for the recording of the deposition.
(l) Transcription for appeal. On appeal, audiovisual and audio depositions shall be transcribed in the same manner as other testimony and transcripts filed in the appellate court. The audiovisual 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 review of portions of the audiovisual or audio 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; amd. filed Feb. 27, 1992 eff. July 1, 1992. Amended (g).
Amended Aug. 22, 2013