Tennessee Court Reporters Notary Requirements for Federal Cases

Must Tennessee Court Reporters be a notary public in order to report Federal cases?  It has been suggested by many that they do.  However, the following lays out both State and Federal requirements and provides an answer once and for all:

In Tennessee, the "statute that creates the office" of a licensed freelance reporter empowers the reporter to swear in witnesses and says specifically the reporter does not have to be a notary, as follows:

"TCA 20-9-603(c) Notwithstanding any law to the contrary, a licensed court reporter is not required to be a notary public to record any court proceeding, administrative law proceeding, deposition or any other proceeding. A transcript taken and submitted by a licensed court reporter is not required to be notarized. A licensed court reporter is authorized to administer oaths and swear in witnesses."

Federal Rules of Civil Procedure states:

Rule 28. Persons Before Whom Depositions May Be Taken:

  • (a) Within the United States.
  • (1) In General. Within the United States or a territory or insular possession subject to United States jurisdiction, a deposition must be taken before:
  • (A) an officer authorized to administer oaths either by federal law or by the law in the place of examination; or
  • (B) a person appointed by the court where the action is pending to administer oaths and take testimony.

The following Federal rule regarding an official federal court reporter is where we seem to have gone offtrack a little:

§ 290.20.60 Administering Oaths Not an Official Duty

1 Court reporters inherently do not have the authority to administer oaths because this authority is not conferred by the statute creating their offices. A reporter may administer an oath, however, if he or she is a notary public and state or local law empowers notaries to do so."

A court clerk swears in the witnesses in our local federal courtrooms. Giving the oath is not a part of the official court reporter's normal duties.  In the case of a federal official court reporter, "authority is not (inherently) conferred by the statute creating their offices." Therefore, they must be a notary in order to swear in the witness when the court clerk is not available to perform that duty.   Also note that the federal reporter is not required to have a state license.

In response to a public discussion held by the Tennessee Board of Court Reporting on 6/12/15, Board member Ken Mansfield issued the following statement regarding this issue and refers to TCA 20-9-603(c):

"I believe (1)(A) is clear that since a Licensed Court Reporter (LCR) is authorized to administer oaths by the laws of the State of Tennessee, absent a notary requirement, that satisfies the oath requirement contained in the Federal Rules of Civil Procedure.

This will also confirm the TBCR had this very discussion today and the above language is in accord with our public discussion."  Ken Mansfield

Finally, the question was posed to NCRA:  Would it be an ethical violation or a violation of federal law if, when taking a deposition in federal cases, a Tennessee licensed court reporter gives an oath to the witness when the reporter is not a notary?

NCRA's Response:

"Who administers an oath is governed by each state individually and although I cannot interpret state/federal law for you, it is my understanding that except in a courtroom, oaths given in proceedings under the federal rules are governed by the state where the proceeding is held. So, whatever your state notary laws are would govern federal depositions as well, that would include if your state licensing board gives authority for oath taking to licensed reporters.  I can't really speak to the certificate requirements for federal cases, but I have always thought that reporters only put their notary seal/number on their certificate page to show that they have the notary for purposes of oath taking, not that the transcripts are notarized."

 

Comments from the TCRA Board:

The TCRA Board has no authority to render a legal opinion; therefore, each reporter should read the facts and law as stated above and come to his/her own conclusion. However, it is the Board's opinion that it is NOT a requirement to hold a state notary commission in order to report Federal depositions.  Some out-of-state firms may ask for a notary to swear in the witness, for whatever reason, so it is a personal decision and not a legal requirement to retain your commission.

(For reporters taking work in surrounding states, you should make sure you have the authority to swear in a witness in that state, whether it be by notary or license. If you have the authority to swear in a witness at the location of the deposition, then you have met the requirement for taking a deposition in a federal court case.)

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