Ohio R. Superi. Ct. 13
When an officer makes a copy or a transcription of the recorded deposition in any medium, the officer shall attach a written certification to the copy or transcription. The certification shall state the copy is a true record of the recorded testimony of the witness.
Each court shall provide for the availability of playback equipment. As may be appropriate, the court may purchase or lease equipment or make contract for the equipment on occasions of need. The court shall provide for the adequate training of an operator from the personnel of the court or for the services of a competent operator to operate the equipment when pre-recorded testimony or evidence is presented in court.
If the testimony is recorded stenographically by a court reporter during the playing of the recording at trial, the videotape, disc, or other storage device may be returned to the proponent upon disposition of the cause following the trial.
Ohio. R. Superi. Ct. 13
Commentary (July 1, 1997)
Rule 13 is analogous to former C.P. Sup. R. 12 and M.C. Sup. R. 10. The rule is revised to require the exterior of the videotape to include the total deposition time [division (A)(4)]; to require objections to be noted on the log of transcripted depositions [division (A)(5)]; and to allow expenses associated with the use of videotape to be allocated as costs in the proceeding [division (D)(6)(b)].
In general, the rule implements Civ. R. 30(B)(3), which permits the recording of oral depositions by a means other than stenographic, and Civ. R. 40, which authorizes the prerecording of testimony on videotape for presentation at trial. The rule adapts the provisions developed in stenographic recording to use in electronic recording. Depositions in criminal cases are taken in the same manner as in civil cases. Crim. R. 15(E).
Rule 13(A) Videotape depositions.
Rule 13(A)(2) Notice
Civ. R. 30(B)(3) provides that the notice must specify the manner of recording, preserving, and filing of the deposition taken by other than stenographic means. A complete statement of notice would be lengthy, serve no useful purpose, refer to procedures within the control of the court, and not be uniform. Division (A) specifies the manner of recording, preserving and filing; thus it is necessary in the notice to merely make reference to Rule 13 to satisfy the requirements of Civ. R. 30(B)(3).
Rule 13(A)(3) Persons authorized to take depositions
R.C. 147.01 was amended in 1977 to provide that a notary public is appointed and commissioned as a notary public for the state. A videotape equipment operator need only be commissioned as a notary public to be an officer before whom a deposition may be taken anywhere in the state.
Rule 13(A)(4) Date and time recording
A date and time generator is required because it facilitates reference to any portion of the tape and provides an assurance that no material has been edited out of the tape.
Rule 13(A)(5) Objections.
The officer before whom the deposition is taken is required to keep a log of objections and where recorded on the tape to facilitate reference to the objections. For the same purpose, the log must include the page of the transcript on which objections occur if the videotaped deposition is transcribed.
Rule 13(A)(6) Copies of the deposition.
This provision was formerly a part of division (A)(3). It is more specific than its predecessor by providing for immediate delivery of an audio cassette recording and by placing the responsibility for the cost of copies on the requesting party.
Rule 13(A)(7) Submission to witnesses.
Civ. R. 30(E) provides that an oral deposition, when fully transcribed, is to be submitted to the witness for examination and reading. The rule provides that changes in form or substance desired by the witness may be entered on the deposition with a statement as to the reasons the witness had for making the changes. The changes are not corrections. They are additions with explanations for the additions. When videotape is used, there is no necessity for waiting for a transcription into written form. As soon as the deposition is completed, it is ready for viewing by the witness. If there are changes desired, those additions may be made to the deposition, together with the reasons therefor, and recorded on the videotape in the same manner that the initial testimony was entered. The showing can be waived just as the reading can be waived.
In neither the stenographic method of recording nor in the videotape method of recording is the primary purpose of the review by the witness a check on the accuracy of the recording. It is intended to be an assurance that the final product is the testimony that the deponent wants used in the trial or proceeding.
Rule 13(A)(8) Certification of original videotape deposition.
Civ. R. 30(F), relating to certification by the officer before whom the deposition was taken, was designed for the written deposition. Division (A)(8) allays confusion as to how a reel of videotape can be signed. It provides that a written certification be attached to the original videotape recording reel. The content of the certification is the same for either method. The rule also provides for adding the signature of the witness, if the witness' signing is not waived by the parties. Civ. R 30(E) incorporates the requirement that the witness sign a written deposition.
The final paragraph of division (A)(8) provides for a different certification. It relates to the officer's certification as to the authenticity of a copy. It is applicable to every copy or transcription the officer makes.
Rule 13(A)(9) Certification of edited videotape depositions.
When the court requires an edited copy of a videotape deposition pursuant to division (A)(12), the officer who makes the edited copy is required to certify the conformity of the edited copy to the rulings of the court. The officer also is required to certify that the integrity of the original videotape recording has not been breached.
Rule 13(A)(10) Filing where objections not made.
The rule is the counterpart of a provision in Civ. R. 30(F)(1). Filing is not automatic in the case of a deposition irrespective of the medium in which it is recorded. Filing depends upon the request of the party or order of the court. When there are no objections interposed, there is no further step to be taken before the deposition is viewed by the trier of fact.
Civ. R. 30(F)(3) requires that the party requesting the filing of a deposition give notice of its filing to all other parties. Civ. R. 5(A). The modes of service are set forth in Civ. R. 5(B). Filing of the notice with proof of service is provided for in Civ. R. 5(D).
Rule 13(A)(11) Filing where objections made.
The officer's log of objections is required by division (A)(5) and provides a means of easy reference to the location of the objections by listing the time of the objection as shown by the date and time generator's recording. When there are objections, a party may request the court to rule on the objections. The appropriate form of request would be a written motion. The rule has extended the period for filing the request to fourteen days from the filing of the deposition or such reasonable time as may be stipulated by the parties. Civ. R. 32(A) provides that a deposition need be filed only one day before trial to be used in the trial. In the event of late filing of a deposition, the disposition of the objections should be as the court directs.
Rarely does an objecting party urge all objections made. Good procedure requires the objecting party to indicate, by log reference, the objections no longer urged.
Rule 13(A)(12) Editing alternatives.
It is vital to the use of videotape that the integrity of the original recording be maintained at every stage of the proceedings. No mode of editing may alter the original recording. The rule specifies three alternatives to be followed in the editing process, the choice among which lies with the court. The court, in an order to the officer, specifies the method desired.
One of the purposes of videotape usage is to provide an uninterrupted flow of admissible testimony. Editing serves to keep inadmissible testimony from the jurors.
The first alternative involves the making of a second tape, which is a copy of the original except that it omits all reference to inadmissible testimony. This method has the disadvantage of additional expense in material and time in creating the second tape, the one actually played to the jury.
The second alternative involves the use of the original videotape deposition. At the playing of the tape to the jury, the operator suppresses the sound where there is inadmissible testimony. A schedule of suppression, keyed to the time recorded on the videotape, is prepared in advance by the officer. The operator merely follows the directions of the schedule in playing the videotape recording. Editing for that mode consists of creating the suppression schedule in conformity to the court's rulings. Usage has demonstrated that the jury is not adversely affected by viewing the picture during the period of sound suppression. The method has the advantage of economy in preparation.
The third alternative involves the suppression of the picture as well as the sound.
The rule requires the court to instruct the jury against reading some meaning into the periods of suppression.
Rule 13(A)(13) Storage.
The provision is necessitated by Civ. R. 30(B)(3), which requires the notice to contain information as to the method of preserving the recording. Rule 12(A)(2) permits compliance by a reference to Civ. R. 30(B)(3).
Rule 13(A)(14) Inspection or viewing.
Former R.C. 2319.19 provided that a deposition, when sealed and filed, remained sealed until opened by the clerk for use, by order of the Court, or at the request of a party or counsel. Civ. R. 30(F)(1), which superseded the statute, provides that the deposition is sealed only upon request or upon court order with the implication of its unavailability to others until it is offered into evidence. The videotape medium requires mechanical aid in viewing that places an additional limitation upon inspection. Division (A)(14) limits inspection to that ordered by the court. Provision for copies of depositions in the form of videotape, audio recording, or written transcript is made in division (A)(6). The simplest and most economical copy is on audio tape and it obviates the necessity for viewing of the videotape deposition. To facilitate the making of a copy for a party, division (A)(14) provides for release of the original recording to the officer before whom the deposition was taken for the purpose of making a copy. Release may be by the clerk without a court order.
Rule 13(A)(15) Objections at trial.
The rule recognizes that it is not possible for all objections to be ruled upon in advance of trial. For example, an objection to a hypothetical question propounded to a medical witness may be found to incorporate facts not established in the trial. Until the testimony relative to the facts has been introduced, the sufficiency of the question cannot be determined. In addition, it cannot be assumed that attorneys can foresee every valid objection, particularly when the testimony is being taken out of the normal sequence. The rule recognizes the possibility of a proper objection made at the trial for the first time. Two limitations are placed upon such objections. It cannot be the renewal of an objection previously ruled upon and it cannot be an objection waived under Civ. R. 32(D)(3). Under division (D)(3)(a) of that rule, objection to the competency of a witness or the competency, relevancy, or materiality of testimony is not waived by failure to raise at the deposition unless the ground might have been obviated or removed, if presented then. Errors and irregularities (e.g., form of question, which might be obviated), if raised, are waived unless objected to at the hearing. Division (A)(15) provides that objections raised at trial must be considered and ruled upon in advance of the playing of the recording. Testimony ruled inadmissible at that point poses no problem. The sound (and picture) may be suppressed for that testimony and thus not heard by the jury.
Rule 13(B) Videotape trials.
Rule 13(B)(1) Authority.
Division (B) implements Civ. R. 40, which permits the presentation of the entire testimony and other appropriate evidence in a civil case by videotape. It does not authorize the use of videotape for the presentation of part of the testimony. If only part of the testimony is to be offered on videotape, then the deposition procedure of division (A) is to be followed. Division (B)(1) spells out the limitation of the concept to the entirety of the testimony in a civil trial and also provides that the limitations placed upon the use of depositions do not apply when Civ. R. 40 is invoked. The reason is that the deposition rule does not apply because depositions are not being offered.
In State v. Gettys (1976), 49 Ohio App. 2d 241, a local rule of court required the prerecording of testimony on videotape in a criminal case for presentation to the jury without the intervention of testimony from the witness stand. The court of appeals held the rule to be unconstitutional as a violation of Article I, Section 10 of the Ohio Constitution, which limits depositions in criminal cases to situations of witness unavailability. The Court viewed the videotape recording of all testimony as a collection of depositions. The court also noted that the procedure was inconsistent with Crim. R. 15(A) and (F).
Rule 13(B)(2) Initiation of videotape trial.
The procedure is to be invoked by agreement between the parties with the consent of the trial judge or upon the order of the trial judge in appropriate cases. The current application in municipal and county courts is more limited than in the common pleas court. Rising jurisdictional levels, refinements in docket control and scheduling, together with the development and usage of the medium, may increase the use of videotape prerecorded testimony in all courts. In its present form, agreement of the parties is necessary. A court is empowered to order the use of the procedure only after inquiry into the appropriateness of the measure.
Rule 13(B)(3) Procedure.
The entire prerecording of testimony is distinguished from the taking of a deposition in division (B)(1). Although the concept is different, there are parallels. Division (B)(3) takes advantage of the similarity by making the procedures relative to the taking of depositions applicable to the taking of the entire testimony. If the parties do not simplify the procedure by stipulation pursuant to Civ. R. 29, the procedure of Civ. R. 30, as supplemented by division (A), is applicable. Division (B)(3) contains a very important reference to an inclusion in the order for prerecording of the entire testimony. That inclusion is the date for filing of all of the videotape. The trial judge must set a date that will permit him or her to rule on all objections before trial as required in division (B)(4).
The cost provisions for videotape trials parallel those for depositions. The proponent bears the cost of the videotape used to record the testimony because it is returned to the proponent for reuse when it has fulfilled its purpose. Requesting parties bear the cost of copies of the videotape or of transcriptions they have made in accordance with the basic rule practice expressed in Civ. R. 30(F)(2). For the same reasons expressed in the comment to division (D), the expense of the playback of the videotape trial is a general expense of the court not allocable as costs to the parties. All other expenses are costs to be charged or allocated as provided by law.
Rule 13(B)(4) Objections.
The procedure differs significantly from the provision for objections relative to depositions as set forth in division (A). In a Civ. R. 40 proceeding, all objections must be ruled upon in advance of trial and no objections may be made at trial. With all of the evidence recorded, there is no development at trial that is not known upon the completion of the recording of all of the evidence. The videotape record played to the jury must exclude all nonadmissible testimony. The method of editing may be the creation of a second videotape or the suppression of the audio, or audio and video, relating to inadmissible evidence.
Rule 13(B)(5) Presence of counsel and trial judge.
The provision clarifies the practice and answers the questions as to the obligations of the judge and counsel during the playing of the testimony.
Rule 13(C) Equipment.
Rule 13(C)(1) Standard.
Compatibility of equipment is absolutely essential. Thus, the standard is set in the rule using the only existing accepted standard in equipment of less than broadcast quality. A party deviates from the standard at the party's expense.
This provision affirms the obligation of the court to provide facilities for replay of videotape and indicates that the court may own or lease the necessary equipment or may contract with a service company where usage is infrequent. The purpose of the provision is to make clear that the furnishing of playback equipment is no different from the obligation to provide adequate furniture, supplies, and equipment for the conduct of the court. The cost of providing the videotape equipment is indistinguishable from the cost of providing a blackboard in terms of obligation.
It is incumbent upon counsel to determine what equipment the court has or can acquire and conform to that standard. If the proponent does not conform, the proponent has the obligation to provide equipment or pay the cost incurred in providing it.
Rule 13(C)(2) Minimum equipment.
The rule specifies minimum facilities, but the specification does not foreclose the court from providing additional or more highly developed equipment utilizing the same standard.
Rule 13(C)(3) Maintenance.
Compatibility relates to maintenance as well as to the size of the tape and the specifications for recorders and players. If either the recording equipment or the playback equipment is running at a speed outside the tolerances specified in the standard, the reproduction will be adversely affected. It is essential that the equipment be properly maintained whether leased or owned. The court shall take appropriate steps to maintain the equipment used.
Rule 13(D) Costs; videotape depositions.
Material. The proponent of a deposition must bear the cost of the videotape used to record the deposition. There is no provision that the amount be charged as costs in the action because, under Rule 13(E), the videotape is returned to the proponent after it has served its purpose.
Recording and playback expense. The reasonable expense of recording and playing a videotape deposition is charged as costs in the action pursuant to Civ. R. 54. "Reasonable" is inserted to make it clear that, for example, a color videotape of broadcast quality may not be used to increase the cost burden on a losing party.
Costs of copies. Under Civ. R. 30(F)(2), copies of depositions are the responsibility of the requesting party.
Rule 13(E) Disposition of videotape filed with the court.
Rule 13(E)(1) Ownership.
The provision as to ownership is essential because the videotape has substantial value and may be reused.
Rule 13(E)(2) Release of videotape recording.
The provisions are keyed to final disposition of the case except where the testimony is converted to stenographic recording during the presentation of the evidence in the trial, in which case the release may be made following the trial on the basis that the transcript of proceedings will be made up from the stenographic recording. The provision emerged in the early consideration of videotape applications when stenographic recording of the testimony as played at the trial was considered a safety factor. It is unlikely that the duplication would appear in current practice. When the trial is of a criminal matter rather than a civil matter, the finality of disposition of the case may be more difficult to establish. The testimony recorded on videotape may be converted to some other method of recording, audio or stenographic, upon the ostensible closing of the case. The videotape could then be released and reused. Should the testimony be essential to some post-judgment proceeding, it could be used in the converted form. Prudence would dictate the transcription of the stenographic recording into the written form at the time of the release. Release is to be by order, hence the provision for journalization.