Can Tennessee litigants stipulate around the rule that a court reporter cannot be employed by a party or have a financial interest in the case?

Subject

Opinion No. 14-40, Written Stipulations Concerning Depositions, March 31, 2014

Plain-English summary

Representative Jon Lundberg asked the AG to clarify the relationship between Tennessee Rule of Civil Procedure 29 and the deposition disqualification statute, Tenn. Code Ann. § 24-9-136. Two questions: is the Rule 29 stipulation power limited to scheduling-type matters (notice, time, place, manner), and can parties stipulate to override the statutory disqualifications, including the bar on taking depositions before someone who is an employee of a party or of a party's attorney, or who has a financial interest in the case?

The AG said the Rule 29 stipulation power is broader than scheduling, and yes, the parties can stipulate to waive the § 24-9-136 disqualifications.

Rule 29 reads: "Unless the court specifically orders otherwise, the parties may by written stipulation signed by all parties or counsel (1) provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner, and when so taken may be used like other depositions, and (2) modify the procedures provided by these rules for other methods of discovery." The "any person" language is what does the work. Whatever statutory or rule-based limitations might disqualify a particular court reporter or other person from administering the oath and recording the deposition, Rule 29 lets the parties write around them by written stipulation. The disqualification statute itself opens with "[u]nless all of the parties have entered into a written stipulation otherwise pursuant to Rule 29." That opening clause sits at the front of subsection (a) and applies to every numbered disqualification underneath it, including (a)(3) (employee of a party or attorney) and (a)(5) (financial interest).

The AG applied standard Tennessee statutory-construction principles (Freeman v. Marco Transp.; Thomas v. Oldfield extending those principles to rules; Mallard recognizing the Tennessee Supreme Court's inherent authority to promulgate civil procedure rules). The text is unambiguous: parties can stipulate around the disqualifications.

A footnote clarified the Advisory Commission Comment on Rule 29: that comment concerns the 1993 amendment eliminating the requirement of court approval for stipulated time extensions for discovery responses, not depositions. Reading the comment to limit Rule 29's deposition stipulations would misuse it.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What does Tenn. Code Ann. § 24-9-136 disqualify?

The statute disqualifies certain persons from taking depositions, including (a)(3) an employee of one of the parties or of an attorney for one of the parties, and (a)(5) someone with a financial interest in the action or its outcome. Other subdivisions cover additional categories.

Can the parties waive these disqualifications?

Yes, if they all agree by written stipulation under Rule 29. The opening clause of § 24-9-136(a) makes the disqualifications subject to such stipulations.

Does this apply only to scheduling-type stipulations?

No. The Rule 29 stipulation power covers who takes the deposition ("any person"), when, where, and how. The "any person" prong is what lets parties bypass the disqualification statute.

What if one party will not agree?

The waiver requires all parties (signed by all parties or counsel). Without unanimous written stipulation, the statutory disqualifications apply.

Can a court still object?

Yes. Rule 29 says "[u]nless the court specifically orders otherwise." A court that sees a problem with a particular stipulation, for example because the conflicted reporter would create credibility or admissibility issues at trial, can specifically order otherwise.

Why would parties stipulate to waive these disqualifications?

For convenience or cost reasons. A party with an in-house court reporter, a particular preferred reporter who happens to have a small ownership stake in the litigation funding company, or other situations might motivate a waiver, with both sides' consent.

Background and statutory framework

Tenn. Code Ann. § 24-9-136 is part of Tennessee's regulatory framework for depositions and court reporters. It identifies categories of persons whose lack of independence creates an integrity concern serious enough to justify a default disqualification. The legislature, however, recognized that with full informed consent of all parties (and absent court override), the integrity concern can be managed by stipulation. That accommodation is what § 24-9-136(a)'s opening clause and Rule 29 together accomplish.

The Tennessee Rules of Civil Procedure are promulgated by the Tennessee Supreme Court under its inherent rulemaking authority (State v. Mallard). When interpreting them, courts apply the same construction principles as for statutes (Thomas v. Oldfield).

Citations

• Tenn. Code Ann. § 24-9-136 (disqualification for taking depositions)
• Tenn. Code Ann. § 24-9-136(a)(3), (5) (employee of party or attorney; financial interest)
• Tenn. R. Civ. P. 29 (stipulations regarding discovery)
• Freeman v. Marco Transp. Co., 27 S.W.3d 909 (Tenn. 2000) (Tennessee Supreme Court; statutory construction)
• Thomas v. Oldfield, 279 S.W.3d 259 (Tenn. 2009) (Tennessee Supreme Court; same rules apply to court rules)
• State v. Mallard, 40 S.W.3d 473 (Tenn. 2001) (Tennessee Supreme Court; inherent rulemaking authority)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-040.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
March 31, 2014
Opinion No. 14-40
Written Stipulations Concerning Depositions

QUESTIONS

1. Is the deposition stipulation provided for in Tenn. R. Civ. P. 29 and referred to in Tenn. Code Ann. § 24-9-136 limited to discovery procedures such as notice, time extensions, place, and manner?

2. May the disqualification provisions of Tenn. Code Ann. § 24-9-136(a)(3), (5) be waived by stipulation, including but not limited to the disqualification for an employee of one of the parties or of an attorney for one of the parties or someone with a financial interest in the action or its outcome?

OPINIONS

1. No. The deposition stipulation is not limited to notice, time extensions, place, and manner. Under Tenn. R. Civ. P. 29, the parties may stipulate that depositions be taken before any person, at any time or place, upon any notice, and in any manner.

2. Yes. The disqualification provisions of Tenn. Code Ann. § 24-9-136(a)(3), (5) may be waived by stipulation, including the disqualification for an employee of one of the parties or of an attorney for one of the parties or someone with a financial interest in the action or its outcome.

ANALYSIS

Tenn. Code Ann. § 24-9-136 prohibits the taking of a deposition before persons with certain conflicts of interest unless the parties have entered into "a stipulation otherwise pursuant to Rule 29 of the Tennessee Rules of Civil Procedure." Tenn. R. Civ. P. 29 provides as follows:

Unless the court specifically orders otherwise, the parties may by written stipulation signed by all parties or counsel (1) provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner, and when so taken may be used like other depositions, and (2) modify the procedures provided by these rules for other methods of discovery.

In construing statutes, legislative intent is determined from the plain and ordinary meaning of the language used unless the language is ambiguous. Freeman v. Marco Transp. Co., 27 S.W.3d 909, 911 (Tenn. 2000). Although the rules of civil procedure are not statutes, the same rules of statutory construction apply in the interpretation of rules. Thomas v. Oldfield, 279 S.W.3d 259, 261 (Tenn. 2009). In construing rules, the goal is to ascertain and give effect to the Supreme Court's intent in adopting the rules. See State v. Mallard, 40 S.W.3d 473, 480-81 (Tenn. 2001) ("[T]he [Tennessee] Supreme Court has the inherent power to promulgate rules governing the practice and procedure of the courts of this state.").

1. The deposition stipulation provided for by Tenn. R. Civ. P. 29 is not limited to procedures such as notice, time extensions, place, and manner. The rule clearly provides that the parties may, by written stipulation, allow depositions to be taken before "any person." Indeed, it is precisely because Rule 29 authorizes the parties to stipulate that a deposition be taken before any person that it can operate as an exception to the disqualification provisions in Tenn. Code Ann. § 24-9-136.

The Advisory Commission Comment to Rule 29, which is a comment to the 1993 amendment to the rule, does not pertain to depositions. The 1992 version of Rule 29 required that stipulations extending the time for responses to discovery be made only with the court's approval. See Tenn. R. Civ. P. 29 (1992). As the Advisory Commission Comment states, the 1993 amendment eliminated this prohibition. "The amendment eliminates the prohibition on stipulated time extensions absent court approval for interrogatory answers, production of documents and things, and responses to requests for admission. The court can 'specifically order otherwise.'" Tenn. R. Civ. P. 29, Advisory Commission Comment (1993).

2. Among those disqualified from taking depositions are an employee of one of the parties or of an attorney for one of the parties and someone with a financial interest in the action or its outcome. Tenn. Code Ann. § 24-9-136(a)(3), (5). But the statutory language "[u]nless all of the parties have entered into a written stipulation otherwise pursuant to Rule 29" appears at the very beginning of § 24-9-136(a), and it allows for no exception or limit to its application. It thus must be construed to apply to all subdivisions of § 24-9-136(a), including subdivisions (a)(3) and (a)(5). The statutory disqualifications under Tenn. Code Ann. § 24-9-136(a)(3), (5) may therefore be waived by stipulation pursuant to Tenn. R. Civ. P. 29.

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

LESLIE CURRY
Assistant Attorney General

Requested by:
The Honorable Jon Lundberg
State Representative
20 Legislative Plaza
Nashville, Tennessee 37243