H. B. 2938
(By Delegates Ashley, Ellem, Miley, Westfall, Lawrence, McCuskey, Poore, Householder, Hunt, Manchin and Lane)
(Originating in the House Committee on the Judiciary)
[March 28, 2013]
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto five new sections, designated §47-25-1, §47-25-2, §47-25-3, §47-25-4 and §47-25-5, all relating to the establishment of standards for court reporters and entities that provide court reporting services; providing certain conduct by court reporters and persons utilizing court reporters; establishing transcript format standards; exempting certain reporters and reporting services; authorizing disclosure of certain information on certain practices; and creating civil penalties for violations of this article; and creating right to treble damages.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto five new sections, designated §47-25-1, §47-25-2, §47-25-3, §47-25-4 and §47-25-5, all to read as follows:
ARTICLE 25.COURT REPORTER SERVICES.
§47-25-1. Fair trade standards for use of court reporter services.
(a) The purpose of this article is to ensure the integrity of the use and fees charged for court reporter services by establishing standards for private court reporters and entities that provide court reporting services. It is declared the policy of the state of West Virginia that fair and impartial selection and use of court reporting services are an integral part of the equitable administration of justice.
(b) The provisions described in this section apply to court reporting services performed in this state that are:
(1) Provided by a court reporter, business, entity or firm, wherever based, in connection with a court or other legal proceeding commenced or maintained in this state;
(2) Provided by a court reporter, business, entity or firm based in this state in connection with a court or other legal proceeding that is commenced or maintained in a foreign jurisdiction; and
(3) Provided by a court reporter, business, entity or firm based in this state whether the parties appear in person or by remote means.
(c) The provisions of this article do not apply to the actions of official court reporters or their substitutes, appointed by judges pursuant to section one, article seven, chapter fifty-one of this code, or reporters of government proceedings not relating to a legal proceeding. A legal proceeding includes, but is not limited to, the following:
(1) A court proceeding;
(2) A deposition; and
(3)An arbitration hearing.
(d) Court reporters, businesses, entities or firms providing or arranging for court reporting services are subject to the provisions of this section even if the businesses, entities or firms are not subject to registration or other regulatory oversight in the state.
§47-25-2. Prohibited conduct.
(a) A legal proceeding may not be reported by:
(1) An individual court reporter or court reporter associated with a business, entity or firm with a contractual relationship with a party or an attorney, representative, agent or insurer of a party;
(2) An individual who engages in a prohibited action as provided in this section;
(3) A party to the action;
(4) A relative, employee or attorney of one of the parties;
(5) Someone with a financial interest in the action or its outcome; or
(6) A relative, employee or attorney of someone with a financial interest in the action or its outcome.
(b) Court reporters or businesses, entities or firms that provide or arrange for court reporting services may not engage in any of the following:
(1) Enter into an oral or written contractual agreement for more than one case, action, or proceeding with an attorney, party to an action, insurance company, third-party administrator or other person or entity that has a financial interest in the case, action, or proceeding.
(2) Give an economic or other advantage to a party, a party's attorney, representative, agent, insurer or employee without offering it to all parties. This includes failing to offer comparable services, including price or credit terms, to all parties or otherwise requiring the court reporter or entity providing court reporting services to provide financial terms or other services that are not offered at the same time and on the same terms to all other parties in the legal proceeding. Different credit terms can be offered based on payment experience and credit worthiness.
(3) Base the compensation for the court reporting services on the outcome of the proceeding or otherwise giving the court reporter or court reporting business, entity or firm a financial interest in the action. Court reporters or businesses, entities or firms providing or arranging for court reporting services may not offer or provide court reporting services where payment for those services will be made contingent on the outcome of the action.
(4) Enter into an agreement for court reporting services that restricts the noticing attorney from using the court reporter or entity providing court reporting services of the attorney's choosing including a court reporter or business, entity or firm providing or arranging for court reporter services on any list of preferred providers of court reporting services that is maintained by a person, business, entity or firm that has entered into an oral or written contractual agreement for more than one case, action or proceeding with an attorney, party to an action, insurance company, third-party administrator or other person or entity that has a financial interest in the case, action, or proceeding.
(5) Allow the format, content or body of the transcript as submitted by the court reporter to be manipulated in a manner that increases the cost of the transcript.
§47-26-3. Disclosure and limitations on practices.
(a) (1) At any time during or following the conclusion of a legal proceeding, an attorney or a party to that proceeding has the right to an itemized statement of all rates and charges for all services that have been or will be provided by the court reporter or business, entity or firm providing or arranging for court reporting services to any party to the litigation.
(2) In order to prevent the shifting of costs from one party to another party, the page rate charged for a copy of the transcript may not exceed sixty percent of the page rate charged for the original transcript of the legal proceeding.
(b) The provisions of this section may be waived by agreement of all parties.
§47-26-4. Minimum Transcript Format Standards.
(a) A reporter shall comply with the following transcript format standards when producing a transcript in a legal proceeding. If a reporter is employed by a court, either as an official or pro tem official reporter, the transcript format set forth by state or local rules of court, or adopted by that jurisdiction, if any, will supersede. If there are no transcript format guidelines established within a jurisdiction, the following minimum transcript format standards shall apply:
(1) No fewer than 24 typed text lines per page;
(2) A full line of text shall be no less than 56 characters and/or spaces unless timestamping is used, in which case no fewer than 52 characters and/or spaces shall be used on a full line of text;
(3) Timestamping may only be printed on a transcript under any of the following circumstances:
(A) when a deposition is videotaped;
(B) when requested by counsel on the record, or
(C) when a transcript will have not less than 56 characters per line.
(4) Left-hand margin is defined as the first character of a line of text;
(5) Each question and answer is to begin on a separate line;
(6) Text is to begin no more than 10 spaces from the left margin. “Q” and “A” symbols shall appear within the first 8 spaces from the left-hand margin;
(7) Carry-over “Q” and “A” lines to begin at the left-hand margin;
(8) Colloquy and paragraphed material to begin no more than 10 spaces from the left-hand margin with carry-over colloquy to the left-hand margin;
(9) Quoted material to begin no more than 14 spaces from the left-hand margin with carry-over lines to begin no more than 10 spaces from the left-hand margin;
(10) Parenthetical and exhibit markings of two lines or more shall be no less than 35 characters per line; and
(11) In colloquy, text shall begin no more than two spaces after the colon following speaker “ID.”
(b) Failure to comply with the requirements of this section constitutes a violation of this section, and subjects the court reporter to a civil penalty of $100 for each violation.
§47-26-5. Penalties for violations; civil actions; and treble damages.
(a) Upon finding a violation or violations of the provisions of sections one, two or three of this article, a court may order any transcript of a legal proceeding shall be deemed void and ineligible for admission into a court or for use or submission in any legal or administrative proceeding as a matter of law.
(b) A court reporter, business, entity or firm that provides or arranges for court reporting services which violate the prohibitions of sections one, two or three of this article is subject to civil penalty in a court of competent jurisdiction as follows:
(1) Any party to a civil action, a court reporter, attorney or other person who has been subject to a violation of the provisions of sections one, two or three of this article, may recover a civil penalty for any willful violation of this section and the court shall assess a civil penalty of no less that $2,500.00 for each violation, and if the court finds that the defendant has engaged in a course of repeated and willful violations of this section, it may assess a civil penalty of up to $5,000.00 for each violation of this section; and
(2) Any person who shall be injured in his or her business or property by reason of a violation of the provisions of sections one, two or three of this article may bring an action therefor and shall recover threefold the damages sustained by him or her, together with reasonable attorneys' fees, filing fees and reasonable costs of the action.