Alabama depositions: a video deposition has to look like a trial, and you say why you need one

Alabama treats a video deposition as a piece of trial evidence being made in advance, and its rule says so. Everything follows from that: the notice explains itself, the conduct mimics a courtroom, and the stenographer stays.

Video is an addition, and the notice justifies it

Rule 30(b)(4):

The testimony at a deposition may be recorded on videotape, or by other equivalent technology, in addition to the stenographic record. Any such deposition will be conducted in a manner to replicate, to the extent feasible, the presentation of evidence at a trial. If the deposition is to be so recorded, the notice given pursuant to subdivision (b)(1) of this rule shall designate the person before whom the deposition shall be taken, the manner of recording, and the reason why such recording is necessary or desirable, and include other provisions to assure that the recorded testimony will be accurate and trustworthy and that the witness will be treated fairly.

Four requirements sit in that passage, and three of them are drafting obligations.

In addition to the stenographic record. Like Idaho and unlike Tennessee, Alabama keeps the reporter. Video never replaces the transcript.

Conducted to replicate a trial. Not a rule about camera placement — a rule about how the examination is run. Speaking objections, cross-talk and asides that would be impossible in front of a jury are out of place on an Alabama video record.

The notice states the reason. You must say why the recording is necessary or desirable. A notice that simply announces videotaping does not comply, and a witness who will be unavailable for trial, or testimony that will be shown to a jury, is the kind of reason the rule contemplates.

And it carries fairness provisions — terms assuring the recording is accurate and trustworthy and that the witness is treated fairly. Those are for the noticing party to propose, not for the other side to demand later.

Who pays

The same subdivision allocates the cost, and it follows the request rather than the notice:

The party requesting videotaping or recording by other equivalent technology will bear the expense associated with such videotaping or recording. Any party may, at its own expense, obtain a copy of the recording. These expenses may be taxed as costs at the conclusion of the action, if appropriate.

So the party who wanted the camera pays for it, copies are available to anyone who pays for one, and the whole cost may come back as taxed costs at the end. That last clause is worth remembering when the expense looks disproportionate mid-case.

Early depositions by a plaintiff

Rule 30(b)(2) carries the special-notice route: leave of court is not required for a deposition taken by the plaintiff if the notice states that the person to be examined is about to become unavailable — "[l]eave of court is not required for the taking of a deposition by plaintiff if the notice (A) states that the person to be examined is about to go out of the state" and will be unavailable unless deposed before the ordinary period expires.

The matching protection applies to a party caught short: one who shows that when served with such a notice it was unable through the exercise of diligence to obtain counsel to represent it at the deposition is protected against the deposition being used against it.

Documents and non-parties

Attendance of a non-party is compelled by subpoena under Rule 45 — and in Alabama a standalone records subpoena is not simply served. It goes through a notice-of-intent procedure with a ten-day objection window, described in Alabama subpoenas. Where you plan to depose a records custodian and obtain documents, joining the two commands avoids that wait.

Objections during the deposition

Rule 30(c) keeps the deposition moving whatever is objected to:

All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to any objection, but the examination shall still proceed, subject to any such objection. Any objection must be stated concisely in a nonargumentative and nonsuggestive manner.

The design is the same everywhere it appears: note it and carry on. The objection is preserved, the answer is given, and the admissibility question is decided later by the court rather than at the table.

Note the last sentence: concise, nonargumentative and nonsuggestive. On a videotaped deposition that requirement does double duty. Because Rule 30(b)(4) asks the examination to replicate a trial presentation, an objection that would be improper in front of a jury is doubly out of place — it is preserved either way, so there is nothing to gain by arguing it at length on camera.

Stopping or limiting a deposition

Rule 30(d) allows either court to hear it:

At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the court in the circuit where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition

The standard is the same wherever this provision appears — bad faith, or conduct that unreasonably annoys, embarrasses or oppresses the deponent or a party. It is not a remedy for a deposition that is merely long or hostile. On a video record this is worth invoking early rather than late: a jury will eventually watch whatever was allowed to continue.

A short checklist

Noticing a video deposition:

1. Book the reporter too. Video is in addition to the stenographic record.
2. State the reason the recording is necessary or desirable — the rule requires it in the notice.
3. Designate the officer and the manner of recording.
4. Include fairness provisions assuring accuracy and fair treatment of the witness.
5. Run it like a trial examination, because the rule says it should replicate one.
6. Expect to pay, and remember the cost may be taxed at the end.

Otherwise:

1. Ask for a copy of any recording; it is available at your own expense.
2. Check the notice for the required reason if you are on the receiving end of a video deposition.
3. Use the subpoena route early for non-party documents, given the notice procedure.
4. Check the certification on an early plaintiff's notice.

Where these rules live

• Ala. R. Civ. P. 26 — General Provisions Governing Discovery
• Ala. R. Civ. P. 28 — Persons before whom depositions may be taken
• Ala. R. Civ. P. 30 — Depositions upon oral examination
• Ala. R. Civ. P. 32 — Use of depositions in court proceedings
• Ala. R. Civ. P. 45 — Subpoena
• Alabama subpoenas
• Alabama motion to compel discovery

This page explains what the rules say. It isn't legal advice, and whether a particular recording expense is taxable as costs is decided at the end of the case.