ENGROSSED

Senate Bill No. 746

(By Senators Wooton, Ball, Bowman, Dittmar, Hunter, Kessler, Oliverio, Ross, Schoonover, Snyder, White, Deem and Scott)

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[Originating in the Committee on the Judiciary;


reported February 25, 1998.]

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A BILL to amend and reenact section one, article seven, chapter fifty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to further amend said article by adding thereto a new section, designated section nine; and to amend and reenact section one, article four, chapter fifty- seven of said code, all relating to court reporters and providing for certification of court reporters by the supreme court of appeals; prohibiting the use of rough draft transcripts in lieu of a certified transcript for purposes of appeal or of challenging the accuracy of such certified transcript; prohibiting reinstatement of any deposition transcript declared void as having been taken by a relative or employee of a party, attorney or person interested in a case; prohibiting the parties or attorneys from waiving the prohibition against the reporting of depositions by a relative or employee of a party, attorney or person interested in a case; authorizing the supreme court of appeals to impose sanctions on court reporters who violate the prohibition against a relative or employee of an attorney, party or interested person recording depositions; and requiring all transcripts of depositions reported in this state to conform to certain text format specifications.

Be it enacted by the Legislature of West Virginia:
That section one, article seven, chapter fifty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that said article be further amended by adding thereto a new section, designated section nine; and that section one, article four, chapter fifty-seven of said code be amended and reenacted, all to read as follows:
CHAPTER 51. COURTS AND THEIR OFFICERS.

ARTICLE 7. OFFICIAL REPORTERS.
§51-7-1. Appointment; oath; attendance at grand jury sessions.

The circuit courts of the several judicial circuits in this state, or the judges thereof in vacation, or the judges of any intermediate, criminal or common pleas court, are hereby empowered and authorized to appoint competent certified shorthand reporters to take and report, under such regulations as such judges, or any of them, may prescribe, the proceedings had and the testimony given in any case, either civil or criminal, or in any other proceeding had in such court, including the taking of testimony before the grand jury of such court for the use of the prosecuting attorney of the county, and in proceedings before the judge of such court in vacation, and otherwise to aid the judge in the performance of his official duties.
The appointment of such certified reporter may be made by the judge of such court by an order entered of record, and the reporter so appointed shall be designated the "official reporter" of the court for which he or she shall be appointed.
Such certified reporter, when appointed, shall be qualified under oath, and shall be authorized to attend the sessions of the grand jury, but shall retire from such session when directed by the foreman, or a majority of the grand jury, or when ordered to do so by the court, and when the grand jury desires to consult or vote upon any matters before them.
Court reporters shall be certified by the supreme court of appeals, which shall promulgate rules governing certification.
§51-7-9. Uncertified rough draft transcripts furnished to counsel for work product and impeachment purposes.

The transcript of the official reporter, or official reporter pro tempore, of any court, duly appointed and sworn, or of a private certified reporter, when transcribed and certified as being a correct transcript of the testimony and proceedings in a case, is prima facie evidence of that testimony and proceedings, including sworn depositions not heard before the court.
The transcript of the official reporter, or official reporter pro tempore of any court, duly appointed and sworn, including private certified reporters, when prepared as a rough draft transcript, shall not be certified and cannot be used, cited or transcribed as the official certified transcript of the proceedings, and further, may not be cited, in whole or in part, in appellate proceedings. A rough draft transcript shall not be cited or used in any way or at any time to rebut or contradict the official certified transcript of any proceedings as provided by the official reporter or official reporter pro tempore. The production of a rough draft transcript shall not be required.
In compliance with section one of this article, and in recognition of emerging technology, a rough draft transcript, produced by the official report or any certified reporter may be used in court proceedings only for the purposes of impeachment when the transcribing reporter is present and available for verification of said transcript should such verification become necessary. Otherwise, said rough draft transcript shall be considered work product of counsel and the sole property of the party who solicited and purchased the rough draft transcript.
CHAPTER 57. EVIDENCE AND WITNESSES.

ARTICLE 4. DEPOSITIONS AND PERPETUATION OF TESTIMONY.

§57-4-1. Taking and certification of depositions -- Generally.
In any pending case the deposition of a witness, whether a party to the suit or not, may, without commission, be taken in or out of this state by a justice, or notary public or by a commissioner in chancery, or before any officer authorized to take depositions in the county or state where they may be taken. However, a deposition may not be taken reported by any person who is a relative or employee or attorney of any of the parties, or is a relative or employee of the attorney, or a relative or employee or attorney of one who has a financial interest in the outcome of the case, or who is otherwise financially interested in the action. The transcript of any deposition taken reported by an interested party, as described above, shall be considered void, and the validity of the transcript may not be reinstated. The prohibition against the reporting of depositions by a relative or employee of a party, attorney or interested person may not be waived by counsel or the parties to the deposition.
For purposes of this article, an employee includes a person who has a contractual relationship with a party litigant or his or her counsel to provide reporting or other court services and also includes a person employed part-time or full-time under contract or otherwise by a person who has a contractual relationship with a party litigant to provide reporting or other court services. A party litigant does not include federal, state or local governments and the subdivisions thereof.
Any certified reporter violating the provisions of this section by reporting a deposition for one with whom said reporter has a contractual or family relationship, as described above, may be sanctioned by the supreme court of appeals, which shall promulgate rules of procedure for imposition of such sanctions. Sanctions may include suspension of "state certification" up to two years and imposition of fines.
Depositions may be taken in shorthand, or stenographic characters or notes, and shall be written out in full and transcribed into the English language by the stenographer or certified reporter taking the same, and shall be certified by the officer before whom the depositions are taken; and if certified by such officer under his hand and if further certified by him that such stenographic characters and notes were correctly taken and accurately transcribed by him, or under his direction and supervision, and that the witnesses were duly sworn, such depositions may be received and read in evidence without proof of the signature to such certificate and without the signature of the witness to such depositions. And in case the stenographer taking such depositions is not the officer before whom the same are being taken, then such stenographer, before proceeding to take any of said depositions, shall be sworn to take correctly and accurately transcribe the same, and the certificate of the officer before whom the depositions are taken shall state that the stenographer was so sworn.
In recognition of emerging technology and the need for continuity in electronic filing and consumer product, all transcripts of depositions reported in geographic boundaries of the state of West Virginia, shall conform to the text format specifications defined in section four, article seven, chapter fifty-one of this code.