In a deposition, the phrase "off the record" signals the court reporter to stop typing. When something is "on the record," the reporter is capturing every word into the official transcript. When counsel goes "off the record," the conversation continues but is no longer being transcribed and will not appear in the certified document.
It sounds simple, but how and when you use it has real consequences for the clarity of your transcript, the strength of your objections, and even how a judge later views the testimony. Here is what the phrase actually means in practice and how to use it well.
The Court Reporter Controls the Record
A common misconception is that an attorney can unilaterally take a deposition off the record. In reality, the record belongs to the proceeding, and the reporter is its custodian.
By long-standing practice, the reporter goes off the record only when all counsel agree. If one attorney says "let's go off the record" and another says "no, I want this on the record," the reporter keeps typing. This protects every party from having key statements quietly disappear.
When you hear "Off the record," a good reporter will pause, confirm there is no objection, and then stop. When someone says "Back on the record," the reporter notes the time and resumes the verbatim transcript.
What Typically Happens Off the Record
Going off the record is normal and happens many times in a routine deposition. Common reasons include:
- Scheduling and logistics — discussing break times, lunch, or how long a session will run.
- Bathroom and coffee breaks — short pauses that don't need to be memorialized.
- Technical issues — fixing a video feed, a microphone, or a remote connection on a Zoom-style deposition.
- Off-the-cuff discussion between counsel — sorting out which exhibits come next or resolving a minor logistical disagreement.
- Witness comfort — letting a witness collect themselves, get water, or speak privately with their own attorney (within the bounds of the rules).
None of this belongs in a verbatim transcript, and keeping it out makes the final document cleaner and easier to read.
What Should Stay On the Record
The risk of overusing "off the record" is that something important slips out of the transcript. Keep these on the record:
- Stipulations — agreements between counsel about how the deposition will run, how objections are reserved, or how the transcript will be handled. If it's not on the record, it may be unenforceable later.
- Objections and the grounds for them — the whole point is to preserve them for the judge.
- Rulings, instructions not to answer, and the responses to them.
- Anything you may want to use in a motion or at trial.
A useful habit: if you negotiate something off the record, go back on the record and summarize the agreement so it's captured. "Back on the record. Counsel and I have agreed that..." That one sentence can save a fight months later.
Off the Record Is Not the Same as Confidential
This is the most important misconception to clear up. "Off the record" means not transcribed. It does not mean privileged, sealed, or inadmissible.
- People in the room still heard what was said, and they can testify about it later.
- On a videotaped deposition, the camera may still be running unless the videographer is also told to stop.
- Statements made off the record can still be referenced back on the record ("As we discussed off the record...").
If you need something to be genuinely protected, that's a matter of privilege or a protective order, not the simple act of going off the record. Treat "off the record" as a transcription instruction, not a cloak of secrecy.
Practical Tips for Attorneys and Paralegals
- Be explicit. Say "Let's go off the record" and "Let's go back on the record" clearly. Don't assume the reporter knows when a side conversation has ended.
- Don't bury rulings. If a discovery dispute gets resolved during a break, restate it on the record.
- Watch the clock on video. Tell the videographer separately if you want video paused.
- Avoid coaching concerns. Conferring with a witness off the record while a question is pending can draw objections and even sanctions in some jurisdictions. Know your local rules.
- Read the certified transcript. Off-record gaps should be marked. If something important is missing, raise it promptly.
Why a Skilled Reporter Matters
A seasoned court reporter manages the on-and-off rhythm smoothly, confirms agreement before stopping, marks the time accurately, and keeps the transcript clean without losing anything substantive. That judgment is part of what you're paying for.
Court reporter rates vary widely by region and format, and are commonly billed by transcript page plus an appearance or per-diem fee, with extra charges for expedites, video synchronization, and rough drafts. Because pricing and availability differ so much from market to market, it pays to compare a few professionals before you book.
On courtreporter.co, you can browse and compare court reporters across the country for free, review their coverage areas, and reach out directly. Finding a reporter who handles the record with care means fewer surprises in your transcript and one less thing to worry about during the deposition itself.
The Bottom Line
"Off the record" is a routine, useful tool for keeping logistics and small talk out of the official transcript. Use it freely for housekeeping, but be disciplined about putting anything that matters, especially stipulations and objections, back on the record. And remember: off the record means untranscribed, not secret.