Bill 366

                    Current Status

Bill Number:               366
Ratification Number:       105
Act Number                 66
Introducing Body:          Senate
Subject:                   Video-tape in recording depositions

(A66, R105, S366)

AN ACT TO AMEND TITLE 16, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO CIVIL REMEDIES AND PROCEDURES, BY ADDING CHAPTER 28 SO AS TO ESTABLISH PROCEDURES FOR THE USE OF VIDEO-TAPE IN RECORDING DEPOSITIONS.

Be it enacted by the General Assembly of the State of South Carolina:

Videotape depositions

SECTION 1. Title 15 of the 1976 Code is amended by adding:

Chapter 28 which shall read:

"Chapter 28

VIDEOTAPED DEPOSITIONS

Section 15-28-10. As used in this chapter any reference to 'rule' or 'rules' refers to the rules of the circuit courts of this State as those rules were in effect July 1, 1980. The provisions of this chapter apply only to civil actions in which the prayer for relief involves an amount of one hundred thousand dollars or more or in which the court has granted permission for the use of videotape by court.

Section 15-28-20. A. When a party taking a deposition, in addition to having the testimony taken stenographically and transcribed also desires to have the testimony videotaped, the party shall include notice of the videotaping of the deposition in the written notice required ,by Rule 87(G). Neither the provisions of this Chapter nor Rule 87 shall preclude the parties from agreeing that a written transcript will not be prepared with respect to a particular deposition.

B. The officer before whom a videotape deposition is taken shall be one of the officers enumerated in Rule 87(A).

C. (1) At the beginning of the deposition, and prior to the deposition, and prior to the deponent being sworn, the videotape operator shall record an identification sign. As the sign is being recorded, the operator shall, in addition, vocally record the information on the sign. The identification sign shall indicate the caption of the action, the docket number of the action, the name of the deponent, the date, the time, and the name of the officer before whom the videotaped deposition is being.

After the identification sign has been recorded, each participant shall identify himself or herself on camera, stating clearly the name, the address, and the role of the participant.

(2) After the identification required by subsection (1) above has been completed, the witness shall be put on oath as required by Rule 87 (H) (3); the swearing shall be on camera.

(3) After the witness has been sworn, testimony shall be taken in accord with the provisions of Rule 87. The taking of such testimony shall, be videotaped in its entirety.

(4) During the taking of a videotape deposition under this chapter, the officer before whom the deposition is taken shall assure that the videotape records the witness in a standard fashion at a times during the deposition, unless all counsel agree otherwise, or unless on motion before the court, the court directs otherwise. In no event shall the officer use, or permit the use of, videotape camera techniques such as close-up views of the witness or other similar techniques to vary the view which is being recorded for presentation in the courtroom unless agreed upon or ordered by the court as recited above. As an exception to the foregoing, the officer shall, at the request of the attorney questioning the witness, cause a close-up view of a deposition exhibit to be taken while the witness is being questioned concerning the exhibit.

D. When a videotape deposition has been taken, the videotape shall be shown immediately to the witness for examination, unless such showing and examination are waived by the witness and the parties.

E. The officer before whom a videotape deposition is taken shall cause to be attached to the original videotape recording a certification that the witness was sworn by him and that the videotape recording is a true record of the testimony given by the witness. If the witness has not waived his right to a showing and examination of the video-tape deposition, the witness shall also sign the certification. If the witness has exercised his right pursuant to subsection D above to examine the videotape and, having done so, refuses to certify that the videotape recording is a true record of his testimony, the officer before whom the videotape deposition was taken shall so note on the certification form and shall further state the reasons given by the witness for refusing to certify that the videotape recording is a true record of his testimony.

F. The videotape deposition, together with the certification, shall be filed by the officer before whom the deposition was taken at the same time and in the same manner the written transcript is filed pursuant to the provisions of Rule 87 (H)(5)(a).

G. Upon payment of reasonable charges therefor, the officer before whom the deposition was taken shall furnish a copy of the videotape deposition in the form of a videotape or an audio recording to any party or to the deponent.

H. Except upon order of the trial judge and upon such terms as he may provide, the videotape recordings on file with the clerk of court shall not be available for inspection or viewing after their filing and prior to their use at the trial of the case or their disposition in accordance with this rule. The clerk may release the videotape to the officer before whom the deposition was taken, without the order of the trial judge, for the purpose of preparing a copy for a party or a deponent as provided in subsection G above.

I. If objections have been made by any of the parties during the course of the deposition, upon the written request of any of the parties submitted to the clerk of court, the videotape depositions with the written transcript and the certifications required by Rule 87(H)(5)(a) and subsection E above, shall be submitted by the clerk of court to the trial judge for the purpose of obtaining rulings on the objections. An audio copy of the sound track may be submitted in lieu of the videotape for this purpose. For the purpose of ruling on the objections, the trial judge may review the written transcript, view the entire videotape recording, view only those parts of the videotape recording pertinent to the objections made or he may listen to an audiotape recording submitted in lieu of the videotape recording. The trial judge shall rule on the objections prior to the date set for the trial of the action and shall return the recording to the officer with notice to the parties of his rulings and of his instruction as to editing. The editing shall reflect the rulings of the trial judge and shall remove all reference to the objections the officer shall then cause the videotape to be edited in accordance with the court's instructions and shall cause both the original video-tape recording and the edited version of that recording, each clearly identified; to be filed with the clerk of court.

J. If an objection is made at the time of trial when objection has not previously been raised and ruled upon, such objection shall be made before the videotape deposition is presented and shall be ruled upon, by the trial judge in advance of the presentation. If such objection is sustained, that portion of the videotape deposition containing the objectionable testimony shall not be presented to the jury.

K. The party taking the deposition shall be responsible for assuring that the necessary equipment for videotaping the deposition is present at the time the deposition is taken. The party desiring to use the videotape deposition for any purpose subsequent to the taking of the deposition shall be responsible for assuring that the necessary equipment for playing the videotape deposition back is available when the videotape deposition is to be used. When a videotape deposition is used during a hearing, a trial, or any other court proceeding, the party first using the videotape deposition in whole or in part shall assure the availability of the same or comparable videotape playback equipment to any other party for such other party's use in further showing the videotape deposition during the hearing, the trial, or other court proceeding in question.

L. (1) The cost of videotape, as a material, shall be borne by the party taking the videotape deposition. Where an edited version is required, the cost of videotape, as a material, shall be borne&by the party who caused to be recorded testimony or other evidence subsequently determined to be objectionable and ordered stricken' from the tape by the court.

(2) The cost of recording the deposition testimony on videotape shall be borne by the party taking videotape deposition.

(3) The cost of producing an edited version of the videotape recording for use at trial shall be borne by the party who caused to be recorded testimony or other evidence subsequently determined to be objectionable and ordered stricken from the tape by the court.

M. (1) The ownership of the videotape used in recording testimony shall remain with the party taking the videotape deposition. The ownership of the videotape used in producing an edited videotape recording shall remain with the party who caused to be recorded testimony or other evidence subsequently determined to be objectionable and ordered stricken from the tape, by the court. Videotape may be reused for the recording of other testimony, but the proponent shall be responsible for the submission of a recording of acceptable quality.

(2) The trial court may authorize the clerk of court to release the original videotape recording and the edited videotape recording to the owner of the videotape: (a) upon the final disposition of the case when no trial is had.

(b) upon the expiration of the appeal period following the trial of the case, provided no appeal is taken, or

(c) upon the final determination of the case, if an appeal is taken.

N. The cameraman who videotaped a deposition pursuant to the provisions of this chapter shall execute the following written certificate prior to the beginning of the videotape deposition:

'I________________ hereby affirm that I am familiar with the provisions of Circuit Court Rule ______________ pertaining to videotape depositions and will assure that the videotaping of this deposition is done in compliance with the provisions of Circuit Court Rule ________________ and in an impartial manner.' Such written certification will be filed in accordance with subsection F above."

Time effective

SECTION 2. This act shall take effect upon approval by the Governor.