The Truth About Digital

After preparing for an important deposition, you are about to go on the record when the person you assumed was a Certified Court Reporter (CCR) asks the parties if they will stipulate to a “digital reporter.”  Or you may have received suggestions to broaden your deposition notices to allow for the recording of deposition testimony solely by digital audio and/or by artificial intelligence means without having a Certified Court Reporter present.  This practice is sometimes referred to as “digital reporting.”

What exactly does this mean and what should you do?  

1.  Digital reporting is not as techie as it sounds

A digital recording device is used to record the proceeding, and a transcript is created by unlicensed contractors working from the recording.  There is nothing new about digital recording.  It’s simply old-fashioned transcription from a recording.

2.  Digital reporters are not certified by Washington State 

There is no Washington state-approved training, degree, certificate or licensure required of a person operating as a digital reporter.

3.  No oversight or regulation by Washington State

There is no certification, background check, or accountability of digital reporters, nor is there any oversight or regulation by the Washington State Department of Licensing, which is the agency responsible for regulating court reporters.  RCW 18.145.005 states:  The legislature finds it necessary to regulate the practice of court reporting at the level of certification to protect the public safety and well-being. The legislature intends that only individuals who meet and maintain minimum standards of competence may represent themselves as court reporters.  Digital reporters should not be confused with court reporters.  They are not permitted to practice court reporting in Washington..

4.  Safety and confidentiality concerns

Transcripts are often produced by one or more unlicensed contractor anywhere in the world. Unregulated and uncertified digital reporters and their unlicensed contractors have open access to your client’s financial, HIPAA-protected, and other confidential information via the recordings and exhibits.

5.  Artificial Intelligence and Voice Recognition

While many companies tout extremely high translation rates, independent studies put the figure closer to 80 percent.  Frequently, the audio is then sent to unlicensed contractors to be typed up or edited.

6.  Transcripts may not be admissible in court

As a digital reporter is not legally permitted to swear in a witness as well as provide court reporting services, the transcript may not be admissible in court (see RCW 42.45.230(1)(e)).

7.  Accents, inaudibles and technical terminology

The accuracy of the transcript depends on not only the quality of the audio recording device capturing the proceedings, but also on the education and experience of the unlicensed contractor transcribing the proceeding.

8.  Chain of custody broken

When multiple unlicensed contractors work on a transcript, it calls into question the chain of custody of the digital audio file, the confidential information that may be contained within it, as well as exhibits that may have been marked. How does someone certify the accuracy of a record when they were not the person who witnessed or reported it (see FRCP 80)?

9.  Audio files can be manipulated and tampered with

There is often a lack of security in place to prevent hacking or manipulation of files.  Audio manipulation programs are now easily available to anyone. 

10.  Minimal training compared to a Certified Court Reporter

Training for digital reporters generally lasts a few days to a few weeks, with little emphasis on legal procedures.  Digital reporters and their unlicensed contractors are drawn from the itinerant workforce.

Don’t Fall for the Hype and Buzzwords

Even though digital reporters offer an inferior product, they have effective marketing techniques, especially in the use of buzzwords.  They use “state-of-the-art digital technology!” You’ll also see references to “powerful AI!” “Method-agnostic connected ecosystems!” “Disruption!”  Many digital entrants are funded by private equity money and are promoting voice recognition and artificial intelligence as the new shiny object.  They have the advantage in terms of marketing dollars, and the use of buzzwords is an easy and effective strategy. 

As a Stanford University study found, the inability of voice recognition systems to understand accents and dialects poses the risk of biased systems which may lead to discriminatory outcomes.  In a separate article in The National News, the Stanford study leader, Allison Koenecke, says, “there are many higher-stakes applications with much worse consequences if the underlying technologies are biased.  One example is court transcriptions, where court reporters [sic] are starting to use speech recognition technologies.  If they aren’t accurate at transcribing cases, you have obvious repercussions.”  This issue, which may impact equal access to justice, extends to other underrepresented communities, including disabled individuals, as noted in an article in Scientific American.   

Questions are being raised about how much of the current AI cycle is hype.  A 2019 analysis of European AI tech startups found that 40 percent of them showed no evidence of actually using AI.  A Bloomberg article reports that many Silicon Valley startups use a “fake it ‘til you make it” strategy, using human labor behind the scenes to do the work.  These articles also point out that this practice often leads to the exploitation of low-wage workers.