Questions I have (as a devil's advocate):

1)  Is it really illegal for William Tolliver to apply an exhibit tag to exhibit 12 and send it to Flynn and Williams?

2)  Is it really illegal for the Clinton law firm to apply their own exhibit tag to exhibit 12 and send the product to U.S. Legal?

3)  Does Barbara Smith personally have to tag exhibit 12 or can someone else do it for her?

4)  Do all the exhibit tags have to match?  (fonts, color, be tagged by the same individual)





THE METHOD I USE TO ANSWER THESE QUESTIONS is to follow these 5 steps in order:


Step 1:  Check Supreme court rules (including rules of evidence)

Step 2:  Check Illinois statutory law

Step 3:  Check local rules

Step 4:  Check Illinois case law

Step 5:  Look at standard practice, examples of how people handle this in the work world of court reporting


If I can't find the answer using step 1, I move on to step 2.  If I can't find an answer in step 2, I move to step 3.  If I can't find the answer on steps 1, 2 or 3, I move to step 4.  If the answer isn't there, I move to step 5.

If I can't find evidence in any of these 5 steps to answer the question, then we don't have a basis for making any claim of illegal activity.



MY RESULTS:


None of the 4 questions can be answered using steps 1, 2 or 3.  Those rules don't cover deposition exhibits.  So I move to step 4.


STEP 4:  using case law


To do step 4 correctly it is important to understand that there were 3 cultural shifts that happened very quickly over the last 5 years that strongly affect how discovery deposition exhibits are treated.


FIRST CULTURAL SHIFT:  Paper exhibits to electronic exhibits


SECOND CULTURAL SHIFT:  In person depositions change to remote depositions.  It is important to understand that remote depositions have been around for a long time.  In these remote depositions the court reporter IS REQUIRED to be in the same room with the witness.


THIRD CULTURAL SHIFT:  Remote deposition where the court reporter is not in the same room with the witness.  This is an important emergency change that began in March, 2020 because of covid.  This was not allowed before covid.


When we look at case law we will run into the problem that these 3 cultural shifts happened very quickly.  All 3 cultural shifts happened in rapid succession, over a period of about 5 years.  For this reason I seriously doubt that there is established case law that applies to our situation.

I don't believe we will find similar cases in which:

a)  The deposition is remote
b)  The court reporter is not in the same room as the witness
c)  An exhibit fails to upload in readable form when sent from the attorney to the court reporter during the deposition
d)  The transcripts are certified and sent out without an exhibit because, after multiple attempts, the court reporter couldn't see all the pages of an uploaded exhibit.


The situation is too new and unique to have existing case law apply to it.


Using case law, the only examples we will be able to find that compares to our situation is when an attorney leaves the deposition room with an exhibit and the court reporter then has to track down the exhibit.  This is when paper exhibits are used and all attorneys, the witness and the court reporter are in the same room.

During the second cultural shift, when the deposition is remote but the court reporter is in the same room as the witness, the court reporter is given all exhibits before the deposition begins and the court reporter gives each exhibit to the witness when the remote attorney asks them to.  Because the court reporter controls the exhibits the whole time, I don't see how it is possible for an attorney to "walk away with an exhibit".

During the third cultural shift, when all exhibits are electronic, the court reporter is not in the same room with the witness, and the attorney uploads each exhibit for the court reporter and opposing attorneys as they are needed during the deposition, only some kind of freak accident (like a bad upload) can prevent the court reporter from being in possession of all exhibits.





STEP 5:  How do we see court reporters handle situations like this when the situation comes up?

I have seen examples where the court reporter says that the attorney gave her exhibits pre-tagged with an exhibit sticker.  She did not put her exhibit sticker on and she made a note in her file that those exhibits wer pre-tagged by the attorney.

I have never seen an example where the court reporting agency refuses to accept an exhibit from an attorney because the transcript was already certified.
In this case the reporter simply accepts the exhibit and adds it to the other exhibits (with a note in her file of when she received it).

I have never seen an example where an unauthorized person was accused of applying an exhibit tag.



After going through all 5 steps, I have no clear proof that we can answer "yes" to any of the 4 questions.