Senate Bill No. 746
(By Senators Wooton, Ball, Bowman, Dittmar, Hunter, Kessler,
Oliverio, Ross, Schoonover, Snyder, White, Deem and Scott)
[Originating in the Committee on the Judiciary;
reported February 25, 1998.]
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
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
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
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.