Ohio R. Superi. Ct. 11
Ohio. R. Superi. Ct. 11
Commentary (July 1, 1997)
Rule 11 is analogous to former C.P. Sup. R. 10 and M.C. Sup. R. 8.
The rule authorizes the use of any one of several media in recording proceedings before a court.
In this comment and in the comment to Rule 12, the terms, "record," "transcript of proceedings," "transcribe," and "transcription" are used. As a preliminary consideration, the manner in which those terms are used in these comments is set forth.
The definition of "record" is the same as that contained in App. R. 9(A):
The original papers and exhibits thereto filed in the trial court, the transcript of proceedings, if any, including exhibits, and a certified copy of the docket and journal entries prepared by the clerk of the trial court shall constitute the record on appeal in all cases. * * *
The transcript of proceedings is the part of the record that reflects the events in the trial not represented by original papers. Essentially, it is the testimony of witnesses and the oral participation of counsel and of the trial judge, as recorded by the court reporter, and required for the purposes of appeal. The transcript of proceedings is the end product of whatever medium is used to record the proceedings. In traditional practice, the stenographic notes constituted a transcript of proceedings in that oral testimony was transcribed into stenographic notes. Of course, a second transcription into written form was necessary to put the proceedings into a form that could be readily used by all.
When the verb, transcribe, is used in these comments, it means preserving oral testimony by conversion to another medium. The other medium may be stenographic notes, videotape, motion picture sound track, or audio tape. It may also mean the conversion from one recorded medium to another.
When the noun, transcription, is used, it means the copy, either in the original medium or in the conversion medium.
Rule 11(A) Recording Devices
Recordation represents the best method of providing an accurate base for the creation of a transcript of proceedings required for an appeal under App. R. 9(A). In civil matters, there is no obligation to record the proceedings before the court. However, the court must provide a means of recording the proceedings in a civil matter upon the request of a party. R.C. 2301.20 requires the court of common pleas to provide a reporter on request of a party or their attorney. That provision applies to the municipal court by virtue of R.C. 1901.21(A).
Rule 11(A) authorizes stenographic means, which refers to shorthand in one of its forms. Phonogramic means refers to the use of a stenotype. Photographic means refers to sound motion pictures, the recording on photographic film. Audio electronic recording devices refers to the several systems for recording sound on magnetic tape, magnetic discs, or an impression disc or belt. A video recording system is one which records sound and picture on videotape.
Rule 11(A) directs that the choice of method of recording of proceedings is vested in the administrative judge rather than in the individual judge in a multi-judge court.
Rule 11(B) Appeal.
A major source of delay in the appellate process is the transcribing from stenographic notes to written record. One of the advantages of recording proceedings on videotape is that there is an instant record prepared. The preparation of briefs can begin at the conclusion of the trial without a lengthy wait for the transcribing of the reporter's notes. Videotape has an advantage over the other electronic media in that it is easier to identify overlapping voices than it is in a pure audio recording.
On appeal, the record is composed of the original papers (pleadings, motions, depositions, exhibits, etc.), the transcript of proceedings, if any, including exhibits, and a certified copy of the docket and journal entries. The parties to the appeal have control over the extent of the transcript of proceedings under App. R. 9(B). The appellant selects the portions of the transcript that are necessary to the appeal. The appellee may require additional inclusions, if necessary to the resolution of the assignments of error. When the appellant intends to urge that a finding or conclusion is unsupported by the evidence or is contrary to the weight of the evidence, the appellant must include a transcript of all evidence relevant to the finding or conclusion. Even where it is claimed that a verdict is against the manifest weight of the evidence, it is not automatic that all evidence is relevant to that issue. For example, where a verdict finds no liability, evidence as to damages is not relevant to the issue of the verdict being against the manifest weight of the evidence. Appellants have followed a common practice of ordering the entire transcription of the proceedings for inclusion in the record on appeal, thus aggravating the problem of delay. The record on videotape negates the problem.
Rule 11(E) requires that the reference in a brief to a particular portion of a videotape recorded transcript of proceedings be to the event, the reel of videotape, and the elapsed time counter reading. For example: Testimony of Dr. Doug Ross, Reel 3, 1-06-55 to 1-14-23. The party would have the testimony within that time span transcribed into written form and append it to the brief to comply with Rule 11(B). The party may make the transcription from the videotape or from an audio tape recording furnished by the reporter, provided there is an accurate frame of reference to the elapsed time counter. The inclusion assists the reviewing court in that the court does not have to place the appropriate reel on the playback equipment, find the appropriate portion, and view the testimony, remembering it for the purposes of decision.
Rule 11(C) Custody.
R.C. 2301.20 provides that the official shorthand reporter is required to retain and preserve the shorthand notes. The provision is necessary because the reporter may be called upon to transcribe the notes into written form. It is a difficult task for another person to transcribe a reporter's shorthand notes. In contrast, records made in electronic media are complete at the conclusion of the proceedings and do not require a reporter's transcription to be utilized by others.
The trial court has custody and control over the electronic recordings of proceedings, including the release of the videotape recording after it has served its function. Videotape is reusable and specific provision is made in Rule 13(E) for the disposition of videotape recordings filed with the court. The same standards serve to guide the court in releasing a videotape recording of proceedings under this rule.
Rule 11(D) Inspection of electronically recorded transcripts of proceedings
All electronically recorded transcripts of proceedings are required to be maintained in the manner directed by the trial court as provided in Rule 11(C).
Rule 11(D) provides that a party may view or hear the transcript of proceedings on file. Party is used as a simplified reference; the reference includes a party's counsel. There is a clear implication that electronic transcripts of proceedings are not available for indiscriminate public viewing, anymore than stenographic notes in the hands of the official court reporter are available for public inspection and reading. Rule 11(C) places the responsibility for custody and maintenance of the filed electronically recorded transcripts in the trial court. The court may entertain and dispose of requests to view the videotape record by persons other than parties or their counsel.
The important aspect of the rule is that a party does not have to order a copy of the videotape recording in videotape or in an audio recording for the purposes of preparing an appeal. The party may work from the original. As a practical matter, the inexpensive audio cassette recording made simultaneously with the videotape recording or made from the videotape sound track provides the information needed for brief preparation with the exception of the superimposed time readings.
Rule 11(E) References to electronically recorded transcripts of proceedings.
The rule implements App. R. 16(D) and Rule VI, Section 1(B)(3) of the Rules of Practice of the Supreme Court. Those references contemplated written records and call for reference to the pages of the record. This rule adapts the reference system to the electronically recorded transcript of proceedings. The example used in the discussion above is repeated to illustrate the reference to videotape: Testimony of Dr. Doug Ross, Reel 3, 1-06-55 to 1-14-23.
Rule 11(F) Expense of electronically recorded transcripts of proceedings.
The rule refers to three distinct areas of expense: (1) the recording of the proceedings themselves; (2) the securing of copies of the transcript of proceedings; and (3) the viewing of the transcript of proceedings.
The expense of recording the proceedings electronically may be made up of different items: the cost of the videotape used, a fee for personnel and equipment to make the recording, and a fee for renting equipment operated by court personnel. The rule provides that these expenses are costs in the action. The official shorthand reporter's services are paid for on an annual salary basis or, if the appointment is for less than one year, on a per diem fixed by the court. R.C. 2301.22. It is also provided that an $25.00 per diem fee be taxed as costs in each reported case and paid into the county general fund. R.C. 2301.21. The rule provision that the expenses of making the electronic recording of the proceedings be costs has the force of statute by virtue of Article IV, Section 5 of the Ohio Constitution and provides an equivalency to the statutory provision relating to an official shorthand reporter. The costs charged for electronic recording consist of the disbursements made by the court; the amounts applicable to the official shorthand reporter are not the amounts charged. Costs would not include allowances for regular court employees. The owner of the videotape is the party who pays the assessed costs, which include the price of the videotape used in the recording of the proceedings.
The rule provides that the cost of an electronically recorded transcript of proceedings shall be borne by the party requesting the copy or as provided by law. This is in contrast to the provisions made for copies of transcripts from the notes of the official shorthand reporter. R.C. 2301.24 provides that the requesting party pay the compensation specified directly to the reporter, and R.C. 2301.25 provides that the cost of the transcript shall be charged as costs in the case. The same statutes provide that the cost of copies ordered by the trial judge or the prosecuting attorney are to be paid from the public treasury and charged as costs in the case. The difference in treatment between an electronically recorded transcript and one recorded stenographically or phonogramically is that the electronic transcript is completed, accessible and usable at any given time without a transcription. A transcription is a convenience, not a necessity, in contrast to stenographic notes which must be transcribed to be useful. R.C. 2301.24 and 2301.25, relating to the provision of transcripts to indigent criminal defendants remain in effect, leaving the matter to the discretion of the trial court. Copies of the transcript may be whole or partial. It may be in the same medium or it may be transcribed into another medium. For example, videotape may be reproduced, the sound track alone may be reproduced as an audio tape recording, or the testimony may be transcribed into written form. Rule 13(A). The cited section applies in municipal courts by virtue of R.C. 1901.21. An example of a provision of law which would make the cost of a transcript recorded on videotape an item of costs in the case is App. R. 24.
Electronically recorded transcripts of proceedings introduce a new factor, viewing or hearing the original transcript of proceedings for brief preparation or the purposes of post-judgment motions. The rule provides that the expense of such viewing or hearing is an expense to be borne by the requesting party. The provision has no counterpart in the statutes by virtue of the nature of the reporter's notes. The provision is commensurate with the requirement that the requesting party bear the cost of a copy. It is a substitute for securing a copy. Viewing or hearing by the prosecuting attorney will be at public expense whether through the prosecuting attorney's budget or through the court's budget. The rule does not provide for that expense to be charged as costs in the case as was true of the expense of copies under the cited statutes.