11.1 Certified Questions, Redactions & Confidential Designations

Blueprint topics 30208 to 30210 cover three requests that attorneys make on the record: certifying a question, redacting something, and marking something confidential. The common thread: the transcriber carries out the procedure the rules or the court provide; the transcriber never quietly removes words.

Certified (marked) questions

What happens on the record

In a deposition there is no judge to rule on objections. When defending counsel instructs the witness not to answer, the examining attorney often says something like:

MR. RUIZ: I'd ask the reporter to certify that question. or Mark that question for a ruling.

The attorney wants to be able to find the question quickly later, to file a motion to compel an answer. Under FRCP 30(c)(2), an instruction not to answer is proper only "to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3)" (a motion to end or limit a deposition conducted in bad faith). Improper instructions are exactly what these motions address.

The transcriber's role

1. Transcribe the question, the instruction and the refusal verbatim, as always.
2. Flag the question so it can be found. Common methods, depending on the jurisdiction and the client's style:
   • a separate list on the index page, headed for example QUESTIONS CERTIFIED or REQUESTS FOR RULINGS, giving the page and line of each;
   • a short parenthetical after the request, if the style sheet calls for one.
3. Do not decide whether the instruction was proper. The transcriber identifies the question; the court rules.

Terminology varies. Some jurisdictions say "certify," others "mark for a ruling" or "flag." The function is the same.

Redactions

"Let's redact that"

When an attorney says on the record "please redact that," the words are still transcribed in the original. Redaction is a separate, rule-governed step. A transcriber who simply leaves words out has altered the record.

Federal redaction rules

Personal identifiers: FRCP 5.2(a) (civil) and FRCrP 49.1(a) (criminal) limit filings to:

Whose job it is: the Guide to Judiciary Policy (§ 510.25.20) says parties must review transcripts and request redactions. Court reporters and transcribers do not have to redact sensitive information unless the parties request it, or to notify parties of material that should be redacted.

The timeline under the Judicial Conference's transcript policy, as courts publish it for transcribers:

During the 90-day period, the transcript can be inspected at the clerk's office and purchased from the reporter or transcriber (§ 510.25.10). Redactions beyond the personal identifiers require a motion and court order.

How to redact (§ 520.70)

• Redaction software is allowed "as long as page and line integrity remains intact."
• Manual redaction: place "an 'x' in the space of each redacted character," with "the same number of x's as characters deleted to preserve page and line numbers." For example, a Social Security number becomes xxx-xx-6789.
• Title page: insert REDACTED TRANSCRIPT on a blank line immediately below the case caption and before the volume number and the judge's name, without lengthening the title page.
• Certify the redacted version with the special redacted-transcript certification (Chapter 9).
• No extra fee may be charged for redacted transcripts provided to the court.

Confidential designations

Protective orders

In civil litigation, a protective order (often stipulated by the parties and approved by the court) lets parties designate testimony and exhibits as Confidential or Highly Confidential – Attorneys' Eyes Only. During a deposition, counsel may say:

MS. CHEN: I'd like to designate the next portion of the testimony, about the pricing formula, as highly confidential under the protective order.

The transcriber's role

1. Transcribe the designation and the testimony verbatim.
2. Mark the designated pages as the order or client requires. Common methods are a legend such as CONFIDENTIAL in the header or footer of each designated page, a list of designated page and line ranges on the index, or a separately bound confidential volume.
3. Restrict distribution. Confidential portions go only to people the order allows.
4. Follow the order, not your judgment, about what is confidential. When the designation is unclear (where does it end?), ask the client.

Designations may also come after the deposition, within a period the order sets. The transcriber may be asked to produce a revised version with the new legends.

What ties these together