Plaintiff Compels Videotaping Despite Defense Objection

Bergen County, NJ. Superior Court Judge Rachelle L. Harz, ruled on July 21, 2008, that a plaintiff may compel the videotaping of her own discovery deposition despite the objection of the defendant.

In her decision posted to the New Jersey state judiciary Web site, Judge Harz ruled that the reading of a cold transcript alone could not adequately capture the plaintiff’s situation in the given case and overruled the defense objection to the videotaping of deposition proceedings.

Harz was also careful to point out that a video record could not exist as a substitute for the stenographic transcript; rather, the two should work together in a symbiotic relationship for the overall benefit of the court. Harz states that, “Irrespective of who initiates the deposition notice, any party to the litigation may video tape, so long as a stenographer also records the deposition.”

The need for this decision was born out a medical malpractice suit in which the elderly Anna LaMarche of Hackensack, NJ., sustained head trauma and other injuries in a car accident. After she was treated and released from Hackensack University Medical Center, she subsequently lost consciousness the following day. She was readmitted to the Center, where she received surgery for a subdural hemotoma, after which she lapsed into a coma. 

LaMarche filed suit against the medical center, citing that the hospital failed to provide proper care when she was first admitted to the hospital.

Defense counsel Rowena Duran notified plaintiff counsel, Michael Maggiano, that LaMarche was to be deposed on June 13, 2008, in front of counsel and a court reporter.

Maggiano responded to the notification stating that the proceedings were to be videotaped at the expense of the plaintiff. “Her words might be slow, delayed and slurred. In a written deposition, you only would see what she said, not how she said it. If you watch her testimony, you can actually see how she was affected by this event,” Maggiano said.

Duran objected to the videotaping of the proceedings, claiming that it was too cost-prohibitive and the preference of the defense counsel was to not appear on tape.

Maggiano responded to this objection by arguing that the plaintiff “should not be precluded from availing herself of this superior technology simply because defense counsel is somewhat camera shy and/or uncomfortable about the prospect of [questioning the] plaintiff before a video camera.”

When presented with this motion, Judge Harz ultimately sided with the plaintiff. She states, “Case law from New Jersey and other jurisdictions involving the videotaping of oral examinations makes clear that videotaping has become an acceptable method of creating a deposition record and is being widely embraced by the legal profession.”

The new ruling highlights the ever-growing emphasis placed on the visual record during trail proceedings. It is not just what the witness says; it’s how they say it. By expressing the visual representation of the testimony as important, this ruling reinforces legal video industry as a prominent player in the litigation field.

The ruling concludes by stating, “Video depositions are here to stay – for, surer than death and taxes, lawyers like to play with new toys.”

To read the complete ruling, click here to visit the New Jersey state judiciary Web site.