Electronic Recording May Be Ordered in Any Civil Proceeding

Tuesday, August 11, 2026

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California Supreme Court:

Electronic Recording May Be Ordered in Any Civil Proceeding

Opinion Says Courts Are to Imply Exception to Government Code Section Limiting Use of Digital Capture, When Reporter Is Unavailable, to Certain Types of Cases if Indigent Party, Broadly Defined, So Requests

By Kimber Cooley, associate editor

The California Supreme Court held yesterday that superior courts have a duty to provide a way for all civil litigants to have an official record of civil proceedings if they so request, including by way of electronic recording if an official reporter is unavailable and the party cannot afford a private option.

Chief Justice Patricia Guerrero authored the unanimous opinion, acknowledging that the use of electronic recording devices to make a record is limited by Government Code §69957, which provides, in relevant part:

“If an official reporter or an official reporter pro tempore is unavailable to report an action or proceeding in a court,…the court may order that, in a limited civil case, or a misdemeanor or infraction case, the action or proceeding be electronically recorded….A court shall not…use electronic recording technology or equipment…to make the official record of an action or proceeding in circumstances not authorized by this section.”

However, Guerrero declared:

“[C]ourts can and should imply an exception to section 69957 where reasonably necessary to provide indigent civil litigants with meaningful access to justice and an official verbatim record. In this context, given the significant cost of hiring a private court reporter, we do not imply some absolute standard of indigency. Instead, any litigant who cannot afford to pay a private reporter may…qualify as indigent for this purpose.”

Original Petition

Yesterday’s decision follows the filing of an original petition for a writ of mandate in the high court in December 2024 by the Family Violence Appellate Project and Bay Area Legal Aid, each of which offer legal representation to low-income clients. The petitioners sought an order directing the superior courts of Los Angeles, Santa Clara, San Diego, and Contra Costa to provide indigent litigants access to an official verbatim record of proceedings in all civil cases.

Guerrero noted that the high court has original jurisdiction in mandamus proceedings, under Article VI, §10 of the California Constitution, if the issues presented by the petition are of great public importance and demand a timely resolution. She commented:

“In this case, ‘in making the writ returnable before this court, we…necessarily determined that the case is a proper one for the exercise of our original jurisdiction.’ ”

She recognized that “other remedies” to address the petitioner’s concerns may exist, such a declaratory relief action in the superior court, but said:

“Petitioners have established a beneficial interest in the issuance of a writ directing the superior courts to provide indigent civil litigants with some means of obtaining an official verbatim transcript, including by electronic recording if no court reporter is available.”

2018 Decision

She cited 2018 decision in Jameson v. Desta, in which the high court held that a then-San Diego Superior Court policy of not providing official court reporters for most civil trials while allowing the parties to secure a privately-retained one breached the principle that all parties are due equal access to the courts regardless of the ability to pay.

Pointing to previous “in forma pauperis precedents,” the court declared in Jameson that an official court reporter, or other valid means to create an official verbatim record for purposes of appeal, must generally be made available to indigent parties.

Family Violence Appellate Project and Bay Area Legal Aid asserted that their clients have frequently been denied the ability to have an official court reporter even when they have made a request under Jameson due to a statewide shortage of qualified stenographers.

They pointed to a 2024 California Access to Justice Commission report indicating that, for the year ending March 31, 2024, “over one million hearings and trials took place in unlimited civil, family, and probate cases—for which California Superior Courts did not provide any means to create an official transcript.”

The petitioners also noted that the Los Angeles Superior Court issued a general order in January 2023 to try to address the purported shortage by declaring that official court reporters will not normally be made available in unlimited civil, probate, or family law cases.

Nearly two years later, the court issued another general order authorizing electronic recording in the event that a proceeding involves fundamental rights and liberty interests of a party, such as cases involving custody disputes, marital dissolution, and civil restraining orders, highlighting that its efforts to secure sufficient official reporters have “proven inadequate.” Other superior courts followed suit and issued similar orders.

The responding superior courts said that they “would let [their] lengthy General Orders speak for themselves” and did not expressly deny petitioners’ factual allegations or legal conclusions, asking only that they be allowed discretion in deciding when to allow electronic recording.

In Forma Pauperis

Guerrero remarked that the in forma pauperis doctrine, which refers to “the inherent power of a court to facilitate meaningful access to justice for indigent litigants,” “extends beyond the paradigmatic example of court fees and costs,” pointing to cases where it has been applied to waive the requirement that party post a bond as security or to eliminate the requirement that a plaintiff pay their share of arbitration expenses.

Saying that those cases relied on the principle that “courts have the inherent power to imply” an exception to a requirement for the payment of fees or other expenses even in the absence of statutory authority to do so, she opined:

“Although this court has never held that a civil litigant has a right to an official verbatim record of trial court proceedings, the general availability of such a record is presupposed under California law.”

The chief justice acknowledged that “California law also provides for alternative procedures that may be used where an official verbatim record is unavailable or incomplete,” such as a statement of facts agreed to by the parties or settled by the court, but said:

“Agreed and settled statements serve important purposes, and they are by no means a facially inadequate method for creating an adequate record for purposes of appeal….But creating a settled statement requires a cumbersome multistep process in the trial court, and settled statements suffer from well-known shortcomings that preclude their use as a systematic substitute for an official verbatim record of trial court proceedings.”

She added that the “[p]etitioners…have submitted persuasive evidence that the respondent superior courts commonly do not provide court reporters when their clients make a request under Jameson” and wrote:

“Electronic recording technology is an ‘alternative procedure[]’ that could address this gap….It appears a significant majority of courtrooms in the four respondent superior courts have equipment for electronic recording already installed. The federal courts and other state courts use electronic recording to create official verbatim records of trial court proceedings.”

Serious Doubts

Finding no evidence that the Legislature intended to specifically deny courts the power to imply an exception to §69957, she reasoned that even if it “had attempted to curtail the inherent power of the courts in this respect, we would have serious doubts that such an effort would be permissible under the California Constitution,” pointing to potential separation-of-powers implications.

As to the assertion, made by an amicus group consisting of professional associations and a trade union representing official court reporters, that the courts’ inability to comply with Jameson was caused by the bodies’ inadequate hiring practices and financial management woes rather than an actual shortage of qualified stenographers, she responded:

“We need not in this proceeding investigate the various causes of the courts’ inability to comply with Jameson or assign blame for the unfortunate circumstances in which indigent litigants find themselves. It is sufficient to recognize that, whatever the cause, courts are frequently unable to provide indigent litigants with the means to obtain an official verbatim record.”

The jurist continued:

“We also need not exhaustively define unavailability in this context….The relevant inquiry is whether an indigent litigant would be deprived ‘of the equal access to justice that in forma pauperis status was intended to afford’ if electronic recording were not used.”

She said the general orders issued in recent years have allowed the use of electronic means to create official records but that the effort “fall[s] short” of what is required. She declared:

“Let a writ of mandate issue directing the respondent superior courts to provide indigent litigants, upon request, with meaningful access in all cases to an official verbatim record of proceedings, including by means of electronic recording if an official reporter or official reporter pro tempore is unavailable. Each party shall bear its own costs.”

The case is Family Violence Appellate Project v. Superior Court, 2026 S.O.S. 2454.