The Evidence Speaks for Itself: A Proposal for the Amendment of Rule 4:14-9

As published in The New Jersey Law Journal Personal Injury Supplement, August 7, 2023
By Dennis Shlionsky

With the adaptation of technological advances overwhelming our daily lives, expedited by the COVID-19 pandemic, modern litigators have embraced the use of video to conduct depositions and present their cases. Nevertheless, there is a standing tension within the Bar on proper practice regarding the taping of one’s own witnesses’ testimony. Some litigators believe that any party may record any deposition, while others proffer that a deponent has no right to condition testimony on the use of a method selected by the deponent’s counsel.

This article focuses on whether the New Jersey Court Rules complicate, not ease, the debate of whether the deponent may compel videotaping of their own deposition or whether the person taking testimony is solely charged with deciding whether it will be videotaped. The focus is on Rule 4:14-9, historical and contemporary perspectives, and the Rule’s practical application as an effective tool to presenting one’s case. When the Rule seems silent, this article proposes that a slight addition to the Rule is an effective solution that will help attorneys and courts deal with this common discovery impediment.

Like many states and the Federal Rules of Civil Procedure, New Jersey’s Court rules permit the video recording of depositions, provided the stenographer is also used and that proper 10-day notice is given. The applicable New Jersey Court Rule, 4:14-9 (Audiovisual Recording of Depositions), was first adopted on July 21, 1980, during a time when “many judges first viewed videotape as litigation Frankensteins” and a decade after Congress amended the Federal Rules of Civil Procedure to allow non-stenographic means for recording depositions. Even prior to the 1980 adoption, our Appellate Division naturally embraced videotape as “recognized and accepted by the “public” and “neither new nor . . . considered an experimental electronic novelty” and when “use[d] in conjunction with television is part of our contemporary scene.” Blumberg v. Dornbusch, 139 N.J. Super. 433, 436 (App. Div. 1976).

New Jersey courts and litigators continued to show an accepting attitude toward litigation technology through the 1980’s, 1990’s and 2000’s with the advent of litigation support software, case management systems, and networked computers. The technology has permeated day-to-day discovery as modern litigators often make requests for metadata or electrically stored information and implement video editing software, which enables one to select key testimony that can be exported to a presentation software for playing at mediation. Today videographers are included in a range of trustworthy discovery mechanisms beyond depositions, such as recording expert medical examinations. See e.g., DiFior v. Pezic, 2023 N.J. LEXIS 647, *3.

In practice, however, there is a problematic application of the New Jersey Court Rule governing videotaped testimony. It lacks clarity and, thereby, creates the opportunity for dispute as to whether a witness noticed for a discovery deposition by an adverse counsel, in reliance on Rule 4:14-9, may compel the videotaping of their own deposition over counsel’s objection. Said simply, the Rule omits explicit provisions addressing situations in which the deposing party opposes the taping, nor does it explicitly permit any party to record testimony cart blanche.

While the Rule and its commentary offer sparse guidance, the unpublished care of La Marche v. Hackensack University Medical Center, BER-L-1100-07, (decided July 2, 2008), adeptly surveyed the relevant rules, historical cases, and practical application to dispel with notions against video recording one’s own deposition. After all, just as skilled craftsmen must adapt to the tools available, modern attorneys must navigate the legal landscape amidst technological advances and with the resources at their disposal.

In that case of first impressions, the La Marche trial court found that New Jersey’s Court Rules permit the non-initiating party to compel the video recording of their own deposition, even if the deposing party opposes it, so long as the stenographer also records the testimony. The court’s ruling, arising in the context  of a medical malpractice suit alleging permanent brain injury and cognitive  impairment, drew from practical application in New Jersey trial courts and prevailing opinions from other jurisdictions, which make “clear that videotaping has become an acceptable method of creating a deposition record and is widely embraced by the legal profession,” and that a deponent should not be deprived of harnessing this superior technology merely due to counsel’s hesitancy or discomfort with questioning a party in front of a video camera.

The court rejected the motion that subsections (d) and (g) of Rule 4:14-9 support the proposition that only the deposing party should choose whether video is used at deposition. While subsection (d) compels the videographer to deliver the tape to the deposing party who takes possession thereof, and subsection (g) places responsibility for out-of-pocket deposition expenses, in the first instance, with the party taking the deposition, Judge Rachelle L. Harz found that the phrase in subsection (g) “in the first instance” highlights the Rule’s flexibility. The court ultimately ruled that these provisions themselves do not preclude the party seeking to videotape from acting as custodian and assuming the expenses associated with making the recording, which fulfill the Rule’s purpose of formalizing the process of videotaping depositions with stenographic testimony.

The court also found that the spirit of Rule 4:14-9 was not motivated solely by cost-efficiency or special circumstances, simply because attorneys encounter challenges when attempting to secure expert or physician appearances for trial. The court acknowledged that subparagraphs (a) and (e) explicitly mention use of expert and physician video at trial, and that hurdles in producing witnesses may arise from a variety of factors (costs, an expert’s other employment obligations, reluctance to travel for trial, or simultaneous testimony in other courts). Yet, relying on Judge Sylvia Pressler’s comment to Rule 4:14-9, the court found that the Rule applies to both expert as well as discovery depositions of parties and lay witness, but its overall purpose, as related to curbing costs and the burdens associated with producing witnesses at trial, applied to experts and doctors. The result is that recording discovery depositions of parties and lay witnesses is not affected by these provisions of the Rule.

Even given the court’s ostensible approval for video colleagues often question the benefits of recording one’s own witness’ discovery deposition. The deponent’s counsel potentially risks exposing a witness to a variable minefield of surprise questions before the camera’s eye. And recovering from a stumble, or instances of other emotional outbursts often leaves a negative impression upon the trier of fact – an impression that may well not be justified, which may finish off even a carefully prepared witness. Yet, while more readily used to contradict or impeach an adversary’s changing story with selected portions of video footage, the Rule 4:16-1(a) recognizes an inclusive approach to creatively use deposition testimony for “any other purpose permitted by the Rules of Evidence.”

In this respect, situations arise, for example in personal injury cases, which are ideal settings for video deposition, where advanced planning and video are strategic, effective, creative, and invaluable tools to present your case. Figari and Loewinsohn, “Video Depositions Come to Court,” 14 Litigation 35, 36 (1988.) Among the merits of videotaping one’s own deposition are the facts that a recording captures demeanor evidence and unspoken language unavailable in other forms; curtails the potential for obtrusive deposition tactics; and, or course, can be used to facilitate a settlement by aiding claims specialists, mediators, and pre-trial judges to appreciate the significance of a deponent’s credibility, cognitive and physical impairments, and potential impression upon a jury.

The placement of a video camera, however, not only captures the witness’s demeanor and mannerisms, but also the deposing attorney’s approach. It may capture the examiner’s tact by highlighting questions designed to surprise or ensure the witness, which would not be apparent to the jury if otherwise read back in a black-and-white transcript. Consider, for example, a colleague of mine that had such an encounter with a camera-shy, but remarkably assertive attorney conducting a cross-examination of a minor plaintiff. The attorney’s questions were measured and precise, all while their imperious demeanor exuded a subtle intimidation, condescending tone, and manipulative body language to elicit a particular response.

In moments like these, video may provide insight into deposing counsel’s hidden agendas and help ensure a fair trial by formalizing the proceeding, the examiner’s delivery, credibility, and inflection, and often reduces opposing counsel’s frivolous objections, coaching and other interferences. Rather than perpetuating a casual or superficial tone, video appears to further clients and their advocate to conduct themselves in a more respectable, controlled, and professional manner.

An attorney may also choose to play portions of a discovery deposition in opening or closing remarks, if not argumentative, or if the client is too ill to testify, so the jury may appreciate, for instance, the magnitude of a client’s cognitive impairments. In situations when a transcript is used substantively, video recordings may be used in the same way and in conjunction with live testimony to avoid the tedium, associated with a cold and laborious reading at trial in exchange for quick, concise delivery of information. However, litigators must be cautious that trial courts will not allow cumulative evidence, such as when video snippets are played over and over, and over, or for example, duplicate testimony is readily accessible from an available witness.

As vicinages continue to face judge shortages, amidst a backlog of cases reducing the public’s access to trials, video depositions may be best used to facilitate settlements by providing the claims specialist, mediator, or judge with a critical review of how a witness will relate to the jury. When it comes to injury litigation, the facts are often better absorbed visually by presenting video testimony, which is frankly more interesting than a stenographic record. The concise snippets of key footage become an invaluable tool to provide a mediator or other intermediary with a more precise and objective framework for assessing merits of the case, as well as the mental and physical distress experienced by the witness.

In this author’s opinion, a revision of New Jersey court rules is the appropriate solution that will help attorneys and courts deal with the developing use of video technology to present one’s case. The present New Jersey Court Rule 4:14 neither requires nor prefers the deposing party to create a video record. Rather, at first glance, it seems to create a presumption that the deposing party is charged with selecting whether video will be utilized. The proposed rule is easily modified by building upon the substance of Rule 4:14-9.

The new subparagraph (b) (Notice) would read as follows:

Any party may video and/or audio record any deposition made in conjunction with and/or concerning the pending action. A party intending to videotape a deposition shall serve the notice required by R. 4:14-2(a) not less than 10 days prior to the date therein fixed for the taking of the deposition. The notice shall further state that the deposition is to be videotaped. Any challenge to the method of taking testimony shall be deemed waived unless brought by way of motion on notice filed and served within five (5) days after service of the deposition notice.

By modifying the first and last sentences and making it the initial and final lines, the proposed rule makes explicit the persons authorized to video record depositions, and the preference for video testimony and opportunity to persuade the court otherwise upon the challengers’ motion. The overall effect of the proposed rule embraces the notion that innovations in technology are transforming our daily lives – including the legal sector.

Indeed, a realistic assessment for the future of video technology is hopeful, as video testimony becomes the norm, and as the pandemic has transformed many aspects of American lives, modern litigants must also embrace technology in their daily practice in a hopeful way. Because most people today, including jurors, live with smartphones that encourage us to watch videos in the palm of our hand, it is crucial to use testimony in effective ways to maximize trial presentation technology. As La Marche adeptly paraphrased another court, it is evident that “video depositions are here to stay for, surer than death or taxes, lawyers like to play with new toys.” Roche v. Udell, 588 N.Y.S.2d 76, 91 (1992).

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Reprinted with permission from the August 7, 2023 edition of The New Jersey Law Journal Personal Injury Supplement © 2023 ALM Media Properties, LLC. Further duplication without permission is prohibited.  All rights reserved.