When a Tennessee court reporter has a conflict of interest under Tenn. Code Ann. § 24-9-136, how quickly do they have to disclose it, and is disclosure at the deposition enough?

Plain-English summary

State Senator Beverly Marrero asked the AG to put a definition on the phrase "timely fashion" in Tenn. Code Ann. § 24-9-136(b)(1). That subsection requires anyone who takes a deposition under the statute to disclose the existence of facts known to them that are relevant to the conflicts of interest listed in subsection (a). The senator's specific follow-up was whether disclosure at the deposition itself could be "timely."

The AG read the phrase by analogy to recusal-timing case law. In In the Matter of C.T.S., 156 S.W.3d 18 (Tenn. Ct. App. 2004), the Court of Appeals held that a party seeking the recusal of a judge for prejudice or partiality "must seek recusal in a timely fashion, immediately after he becomes aware of such prejudice or partiality." Applying that approach, the AG concluded that disclosure under § 24-9-136(b)(1) was timely if it occurred as soon as reasonably possible after the deposition-taker became aware of the conflict.

The policy interest, the AG noted, was minimizing expense and inconvenience. Late disclosure undermines that goal. But if the deposition-taker only learned of the conflict on the day of the deposition, then at-deposition disclosure was the soonest reasonably possible moment. The statute did not retroactively penalize the deposition-taker for not foreseeing what they did not know.

In practice, this answer allows two clean rules. If a conflict is known before the deposition, the deposition-taker should disclose before. If the conflict only surfaces during the deposition (a relationship to a witness becomes apparent, an interest in the outcome is mentioned), disclosure at the deposition is enough.

Currency note

This opinion was issued in 2010. 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.

Background and statutory framework

Tenn. Code Ann. § 24-9-136 governs who can take a deposition in Tennessee and what conflicts of interest disqualify them. Subsection (a) lists the prohibited circumstances. Common ones include the deposition-taker being a party, an attorney for a party, related to a party, financially interested in the outcome, or employed by a party.

Subsection (b)(1) is the disclosure obligation. The person taking the deposition must disclose to the parties "in a timely fashion" the existence of facts known to that person that are relevant to the listed conflicts. The statute does not define "timely fashion." The AG opinion fills that gap.

The analogy to In the Matter of C.T.S. makes sense because both rules govern when a stakeholder must speak up about a potential bias problem. The judicial-recusal cases emphasize that a party who knows of a bias issue and stays silent waives the right to complain later. The same logic carries to depositions: a conflict known and concealed harms the proceeding more than one disclosed at the first reasonable opportunity.

Common questions

Q: Did the AG set a specific number of days?
A: No. The standard is "as soon as reasonably possible." That depends on when the deposition-taker actually knew of the conflict and what would have been a reasonable response in the circumstances.

Q: What if a deposition is going forward and the court reporter realizes mid-deposition that they're related to a witness?
A: Per the opinion, on-the-spot disclosure at the deposition is timely if that is the first awareness. The parties can then decide how to proceed (continue, abandon, retake with a different reporter).

Q: What's the consequence of an untimely disclosure?
A: The opinion did not enumerate consequences. It addressed only what "timely fashion" means under § 24-9-136(b)(1), not what happens if disclosure is late.

Q: Does this opinion apply to both certified court reporters and other deposition-takers (notaries, attorneys taking depositions)?
A: § 24-9-136 by its terms covers "the person taking the deposition." The opinion does not narrow that. Any person within the statutory scope is bound by the disclosure obligation.

Q: How does this interact with the deposition-taker's own duty to assess whether they are even eligible to take the deposition?
A: If subsection (a) lists a disqualifying conflict, the right move is usually to step aside, not just to disclose. Subsection (b)(1) covers situations where disclosure is the relevant remedy, often because the parties may consent to the deposition-taker continuing despite the disclosure.

Citations and references

Statutes:

• Tenn. Code Ann. § 24-9-136 (deposition conflicts of interest)
• Tenn. Code Ann. § 24-9-136(a) (listed conflicts)
• Tenn. Code Ann. § 24-9-136(b)(1) (disclosure of facts relevant to conflicts)

Cases:

• In the Matter of C.T.S., 156 S.W.3d 18 (Tenn. Ct. App. 2004) (timely recusal motion)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-114.pdf

Original opinion text

November 24, 2010

Opinion No. 10-114

Timeliness of notification of conflicts of interest by persons taking depositions

QUESTIONS

1. Tenn. Code Ann. § 24-9-136 prohibits the taking of depositions by persons with certain conflicts of interest and requires that parties to the litigation be notified in a timely fashion of those conflicts. What is the definition of "timely fashion"?

2. Does disclosure at the deposition meet the statutory requirement of notification in a timely fashion?

OPINIONS

1. The term "timely fashion" in this context requires that potential conflicts be brought to the attention of the parties as soon as reasonably possible.

2. Disclosure of a conflict at the time of the taking of the deposition, if that is when the person taking the deposition first becomes aware of the conflict, would meet the statutory requirement.

ANALYSIS

Tenn. Code Ann. § 24-9-136 prohibits the taking of depositions by persons with certain conflicts of interest set forth in subsection (a). Subsection (b)(1) requires such persons to disclose to the parties in a timely fashion the existence of any facts known to the person that are relevant to the conflicts of interest outlined in subsection (a).

The statute does not define the term "timely fashion." In an analogous situation, the Court of Appeals stated that a party seeking recusal of a judge on the basis of prejudice or partiality "must seek recusal in a timely fashion, immediately after he becomes aware of such prejudice or partiality." In the Matter of C.T.S., 156 S.W.3d 18, 23 (Tenn. Ct. App. 2004). We believe that Tenn. Code Ann. § 24-9-136(b)(1) would be interpreted similarly. Potential conflict problems should be brought to the attention of the parties as soon as reasonably possible to minimize expense and inconvenience. Accordingly, disclosure at the deposition, if that is the first time at which the person taking the deposition becomes aware of the conflict, would meet the statutory requirement.

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Associate Solicitor General

KIMBERLY J. DEAN
Deputy Attorney General

Requested by:
The Honorable Beverly Marrero
State Senator
312 War Memorial Bldg.
Nashville, TN 37243