TCRA was asked by some members to offer a position statement that could be shared
with attorneys regarding the unauthorized copying of transcripts. The reporters cited
several instances in which certain attorneys were sharing their copy of the deposition
transcript with attorneys for the other side, thereby depriving court reporters of income.
Our goal at TCRA is to be here as a resource to help our members. As a result, our
Board members have done some research on this very important issue.
First of all, as a practicing reporter with more than 25 years! experience, I know
firsthand that providing free transcripts among a select few attorneys has been
occurring since the beginning of time. It was a common complaint heard across the
nation over 20 years ago and is still the case today!
Our first step was to contact Nate Smith from NCRA to verify whether our national
association had a position statement about this topic. His suggestion was to speak with
Mona Savino, staff liaison to the Committee on Professional Ethics. Ms. Savino said
that while there is no official advisory opinion on the unauthorized copying of transcripts,
she directed us to their website, ncraonline.org. There are three great articles worth
reading. Click under the News & Information tab, then Key Issues, then Unauthorized
Copying of Transcripts.
Ms. Savino went on to tell me that reporters contend that attorneys should not be giving
away our transcripts and that they would need our permission to copy a transcript.
Three arguments are cited to support this position:
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Federal or state rules of procedure require a person to obtain copies from the
reporter
Copyright laws apply
Persons copying transcripts without paying for it, or allowing others to do so,
commit theft of services.
She continued on by saying that while deposition/court transcripts are not technically
original works, the copyright laws do not really apply. Therefore, once an attorney paid
for the transcript, he owns it and is free to do with it as he sees fit. However, Ms. Savino
said, some states do have Theft of Services laws on the books and that we would need
to see if our state had such a law.
In Tennessee, we do have a Theft of Services law -- Tennessee Code Annotated
Section 39-14-104. It states the following:
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A person commits Theft of Services who: (1) Intentionally obtains services by
deception, fraud, coercion, false pretense or any other means to avoid payment
for the services; (2) Having control over the disposition of services to others,
knowingly diverts those services to the person!s own benefit or to the benefit of
another not entitled thereto; or (3) Knowingly absconds from establishments
where compensation for services is ordinarily paid immediately upon the
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rendering of them, including, but not limited to, hotels, motels, and restaurants,
without payment or bona fide offer to pay.
From the TennesseeCriminalLawyerBlog.com, to be found guilty of Theft of Services,
the State of Tennessee must prove each of the following elements beyond a reasonable
doubt:
(1) That the defendant obtained services;
(2) That these services were obtained either by deception, fraud, coercion, false
pretense or by any other means to avoid payment for these services; and
(3) That the defendant acted intentionally.
Certainly there is much to think about if one were to pursue Theft of Services against an
attorney who has “given away” our work product. It would definitely be a costly and
time-consuming endeavor. Reporters need to ask ourselves if this route would be
worthwhile, or are there other options to pursue in order to change the behavior of those
select attorneys.
Ms. Savino!s article found on the NCRA website explores pros and cons to the abovestated possible courses of action. She cites that reporters need to determine whether
any of the options are worth not only the monetary costs, but also the costs to the
reporting community!s relationship with the legal community.
Based on research and the fact that NCRA has not issued an advisory opinion on this
subject, it is therefore the position of TCRA that we cannot and should not issue a
position statement on the unauthorized copying of transcripts at this time.
Submitted by:
Lynette L. Mueller, RDR, CRR