Vermont depositions: the witness can run their own recorder, and opposing counsel can swear the oath

Two provisions in Vermont's Rule 30 have almost no equivalent elsewhere. Anyone in the room may make their own recording, and the oath can be administered by a lawyer on the case.

A second recorder in the room

Rule 30(b)(4)(B):

Any party or witness may at his or her own expense concurrently record a deposition by a method other than that being used by the party taking the deposition. All parties present and the witness shall be advised that the concurrent recording is being made. A person making a concurrent recording shall permit the parties and the witness to review the recording and shall furnish a duplicate to the witness or any party upon request and tender of the actual cost of the duplicate.

Read the conditions carefully, because they run against whoever makes the recording.

Any party — or the witness. A deponent who wants their own record of the day may make one. That is worth telling a nervous non-party client.

By a different method. The concurrent recording has to differ from the one the noticing party is using: video alongside a stenographer, audio alongside video.

At your own expense, and everyone must be told. Recording without advising the room does not comply.

And it is not private. The person recording "shall permit the parties and the witness to review the recording" and must furnish a duplicate to anyone who asks and tenders the actual cost. So a concurrent recording is a shared record with a private price tag, not a private record.

The oath, and who may give it

Rule 30(b)(4) contains a sentence that startles practitioners from other states:

The oath may be administered by an attorney for one of the parties who is a notary.

No independent officer is needed where counsel holds a notarial commission. The default remains an officer appointed or designated under the rules — "[u]nless otherwise agreed by the parties, a deposition shall be conducted before an officer appointed or designated" that way — but this provision removes a practical obstacle in a small state where a reporter may be a long drive away.

The court retains a check: "Upon motion of a party or upon its own motion, the court may impose such additional conditions as are necessary to assure that testimony" is accurately recorded.

Stenographic by default, transcribed on request

Rule 30(b)(4)(A) sets the method and, unusually, decouples recording from transcription:

A deposition shall be recorded stenographically unless the notice of taking states that it is to be recorded by sound or sound-and-visual means. The party taking the deposition shall bear the cost of recording. A deposition recorded stenographically shall be transcribed only if a party or witness so requests. Any party may arrange for a transcription to be made from the recording of a deposition taken by nonstenographic means.

Three things follow.

Stenographic is the default, and departing from it is done by saying so in the notice — no stipulation or order required, unlike South Carolina.

No transcript is produced automatically. A stenographically recorded deposition is transcribed "only if a party or witness so requests." That saves money in cases that settle, and it means a party who wants a transcript should ask rather than assume.

The witness can ask too — the request may come from "a party or witness."

Where the deposition is recorded non-stenographically, the notice has to carry the details: it "shall specify the method of recording; the equipment to be used; the name" of the operator, and the further particulars the rule requires.

Notice

Rule 30(b)(1) requires a party taking a deposition to "give notice in writing to every other party to the action" — with the time and place, and the deponent's name and address if known, or a general description sufficient to identify the person or class if not.

Attendance of non-parties is compelled by subpoena, and Vermont's subpoena rule has its own features worth knowing before you notice a deposition of a stranger to the case — the 50-mile limit and the requirement that every party be copied before or when the subpoena is served. See Vermont subpoenas.

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 the objections.

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 who does the noting: the officer. Where the oath has been administered by an attorney for one of the parties acting as notary, that attorney is the officer for this purpose too — which is worth keeping in mind before choosing that route in a case where objections are likely to be contentious.

Stopping or limiting a deposition

Rule 30(d) matches Vermont's any-judge approach elsewhere in the rules:

At any time during a 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, any superior judge 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. Any superior judge — the same breadth Vermont applies to issuing subpoenas and hearing discovery motions.

A short checklist

Noticing one:

1. Say in the notice if it will be recorded by sound or sound-and-visual means; otherwise it is stenographic.
2. Give the equipment and operator details for a non-stenographic recording.
3. Expect to pay for the recording — the party taking the deposition bears that cost.
4. Request a transcript if you want one; none is produced automatically.
5. Check the subpoena rules before deposing a non-party.

If you are the witness or the other side:

1. Consider a concurrent recording by a different method, at your own expense.
2. Announce it to everyone present before you start.
3. Expect to share it — review on request, duplicates at actual cost.
4. Ask for a transcript if you want one; a witness may request it as readily as a party.
5. Check who is swearing the witness. An attorney for a party who is a notary may do it here.

Where these rules live

• V.R.C.P. 26 — General Provisions Governing Discovery
• V.R.C.P. 28 — Persons Before Whom Depositions May Be Taken
• V.R.C.P. 30 — Depositions upon oral examination
• V.R.C.P. 32 — Use of Depositions in Court Proceedings
• Vermont subpoenas
• Vermont motion to compel discovery

This page explains what the rules say. It isn't legal advice, and whether a particular attorney may act as the notary in a given case can raise questions this page does not address.