Understanding the Legal Landscape
A recent Nevada district court ruling has prompted legal teams to consider the use of AI recording tools in depositions. In Greco v. Hon. Robert W. Lane, the court found no procedural issue with using the Mobvoi TicNote AI voice recorder as a secondary recording method. Rule 30(b)(3)(B) of the Federal Rules of Civil Procedure allows any party to designate an additional recording method with prior notice, but questions about reliability remain unanswered.
These issues are surfacing in meet-and-confer sessions, deposition planning, and Records Control Schedule reviews. Here's what legal operations professionals are asking.
AI Recording Tools and FRCP 30(b)(3)
Procedurally, Rule 30(b)(3)(B) allows the use of AI recording tools at depositions. It permits any party to designate an additional method for recording testimony, provided they notify the deponent and other parties in advance. The primary recording method must be stated in the notice, and any additional method requires prior notice.
In the Greco case, the court found no procedural defect in using an AI voice recorder as a secondary method. The key is that it's an "additional" method, not a replacement for the primary recording.
Your notice obligations include identifying the AI tool, notifying all parties and the deponent, and being ready to address any objections about reliability.
Cost Responsibility for AI Recording
The party choosing the additional recording method pays for it unless the court decides otherwise. If you opt for an AI recorder as a backup, you're responsible for the costs. Rule 30(b)(3)(B) makes this clear.
Plan your budget accordingly. While AI transcription tools are generally cheaper than court reporters, consider subscription fees, storage costs, and the time your team spends reviewing the output. Don't expect opposing counsel to share costs just because the tool provides a searchable transcript.
Handling Objections to AI Recorders
Opposing counsel can file a motion if they object to your AI recorder. The Greco ruling highlights that procedural compliance doesn't resolve substantive objections about reliability or admissibility.
Expect challenges on accuracy, error rates, and whether the AI tool meets evidentiary standards. Courts have excluded Otter.ai transcripts in other contexts, so don't assume your AI recording will automatically be accepted.
If you're proposing the AI tool, be prepared to demonstrate its reliability. If you're opposing it, focus on reliability standards.
AI Transcription as the Sole Recording Method
For now, use AI transcription as a supplemental method. The Greco case involved AI as an additional method alongside traditional recording. No court has approved AI-only recording for depositions.
Rule 30(b)(3)(A) allows testimony to be recorded by audio, audiovisual, or stenographic means unless the court orders otherwise. "AI transcription" isn't recognized yet. Until courts establish reliability standards, treat AI tools as backup records.
Your Records Control Schedule should classify the official record as the stenographic transcript or video recording, with AI transcripts as working files with shorter retention periods.
Reliability Standards for AI Tools
Courts will likely apply existing frameworks for technology producing evidence: testing, error rates, and general acceptance in the field.
The Greco court highlighted these questions. Document that your AI tool is validated for legal transcription. Consumer-grade tools won't meet the same standards as legal transcription tools.
Consider:
- Accuracy rates for legal terminology
- Speaker identification capabilities
- Whether the tool produces both audio files and transcripts
- Correction handling and audit trails
- Vendor's ability to provide expert testimony on reliability
Records Freeze and AI-Generated Deposition Records
If you're using AI tools for deposition records, they fall under your Legal Hold obligations once litigation is anticipated.
Don't assume AI transcripts are exempt from preservation. If they're used for case preparation, they're discoverable. Your Records Freeze notice should cover AI-generated transcripts and audio files.
Clarify whether AI transcripts are working files or supplemental records and document your decision now.
Recording Meet-and-Confer Sessions
Some courts require recording meet-and-confer sessions. If you're recording, the same procedural and reliability questions apply.
Get agreement from all participants before recording. Notify everyone if using an AI tool and confirm their consent.
Treat these recordings as case file materials subject to the same retention rules as other discovery-related records.
Next Steps
Start by reviewing your jurisdiction's local rules on deposition procedures. Many districts have orders that supplement FRCP 30(b)(3).
Examine the Federal Rules of Civil Procedure 30(b)(3) and your court's guidance on recording methods. If evaluating AI tools, request vendor documentation on accuracy rates and legal case studies.
Stay informed about developing case law on AI reliability standards in legal proceedings. The Greco ruling opened the door procedurally but left substantive questions for future courts. Until standards solidify, document your tool selection process, maintain official records through traditional methods, and treat AI transcripts as supplemental working files.
