Today Jim Garrity offers up 14 different, caselaw-supported, arguments to protect your client from being taxed with an opponent's videographer costs following an adverse case outcome. Many lawyers take for granted that the taxation of videographer charges is just as inevitable as for stenographic transcripts. That just isn't so. Listen for more. And remember our show notes contain all the cases mentioned in the episode. Today there are 18 cases in the list. If you can't see them all, click through to our show's home page. Thanks for listening!
SHOW NOTES:
Hemingway Villa Condominium Owners Association, Inc. v. Scottsdale Insurance Company, 2021 WL 7540794, Case No. 1:20-CV-24365-KMM (S. D. Fla. November 22, 2021) (citing FRCP 54(d) and 28 U.S.C. 1920 as authority for taxation of costs, and reciting fact that costs for deposition transcripts are taxable as long as the transcripts were necessarily obtained for use in the case; noting that not all deposition costs, however, are recoverable, including shipping and handling, expedited delivery of transcripts, exhibit costs, or condensed transcripts)
Farmer v. Arabian American Oil Co., 379 U.S. 227, 235 (1964), disapproved on other grounds by Crawford Fitting Co v. J. T. Gibbons, Inc., 482 U. S. 437, 442-43 (1987) (while prevailing party is ordinarily entitled to recover costs, a district court does not have unfettered discretion to award any and every cost that the wing party incurred in pursuit of their case)
Alvarez v. Lakeland Area Mass Transit District, 2020 WL 13119059, Case No. 8:19-CV-01044-33 SPF (M. D. Florida October 2, 2020) (detailing basic standards for taxability of deposition related costs; rejecting taxability of costs for “E – litigation package,” exhibits, scanning, hyperlinking, and shipping and handling;” further rejecting taxability of videographer charges without an explanation from the prevailing party on why the videography was necessary)
Bostick v. State Farm Mut. Auto. Ins. Co., No. 8:16-CV-1400-T-33AAS, 2018 WL 1474712 (M.D. Fla. Mar. 8, 2018), report and recommendation adopted, No. 8:16-CV-1400-T-33AAS, 2018 WL 1461741 (M.D. Fla. Mar. 23, 2018) (video deposition costs may not be awarded under Section 1920(2) without an explanation from the prevailing party on why the video deposition was necessary, citing Morrison v. Reichhold Chem., Inc., 97 F.3d 460, 465–66 (11th Cir. 1996)
Walter v. Wal-Mart Stores, Inc. 2011 WL 13394675 (N. D. Indiana November 4, 2011) (while videography expenses associated with the deposition or of a qualifying type for taxability, the costs may only be taxed if the deposition recordings were necessarily obtained for use in the case; the proper inquiry is whether the deposition was “reasonably necessary” to the case at the time it was taken, not whether it was used in a motion or in court)
Harris Brumfield, Trustee, et al. v. IBG LLC, et al., 2022 WL 972277 (N. D. Illinois March 31, 2022) (court resolve dispute over taxability of videotaping depositions by declining to award costs as to those individuals who resided within the Court’s subpoena jurisdiction at the time of their depositions and at the time of trial, and thus were available for in-person testimony)
Cascades Computer Innovation, LLC v. Samsung Elecs. Co., No. 11 C 4574, 2016 WL 612792, at (N.D. Ill. Feb. 16, 2016) (“A prevailing party may recover costs for both a paper transcript and a video recording of a deposition, but only when it was "reasonable and necessary" for counsel to obtain both,” citing. See Little v. Mitsubishi Motors N. Am., Inc., 514 F.3d 699, 702 (7th Cir. 2008) )
Cherry v. Champion Int'l Corp., 186 F.3d 442, 449 (4th Cir. 1999) (“… unless Champion demonstrates that both costs were “necessarily obtained for use in the case,” 28 U.S.C. § 1920(2), only its transcription costs are recoverable. See Tilton, 115 F.3d at 1478 (adopting similar standard and stating that the district court must find an independent, legitimate use for both the transcription and the video recording before both sets of costs can be recovered under 28 U.S.C. § 1920(2))
Trading Techs. Int'l, Inc. v. eSpeed, Inc., 750 F. Supp. 2d 962, 977 (N.D. Ill. 2010) (“After evaluating the necessity of each video deposition on a case-by-case basis, we find that both stenographic transcription and video-recording was only reasonably necessary for the depositions of witnesses living abroad whom TT disclosed as potential witnesses for trial”)
Morrison v. Reichhold Chemicals, Inc., 97 F.3d 460 (11th Cir. 1996) (costs of both videography and stenography recoverable where party opposing bill of costs did not object to the duplicative methods of capturing testimony at the time the deposition was noticed)
Cherry v. Champion Int'l Corp., 186 F.3d 442, 446–47 (4th Cir. 1999) (“The discretion conferred by Rule 54(d)(1), while only defined in the rule as a general reservation, “unless the court otherwise directs,” has been defined more specifically by courts: “only misconduct by the prevailing party worthy of a penalty ... or the losing party's inability to pay will suffice to justify denying costs.” Congregation of The Passion, Holy Cross Province v. Touche, Ross & Co., 854 F.2d 219, 222(7th Cir.1988) (citations omitted); see also Schwarz v. Folloder, 767 F.2d 125, 131 (5th Cir.1985) (describing the denial of costs as “in the nature of a penalty” (internal quotation marks and citation omitted)); Serna v. Manzano, 616 F.2d 1165, 1167 (10th Cir.1980) (same). We have recognized additional factors to justify denying an award of costs, such as their excessiveness in a particular case, the limited value of the prevailing party's victory, or the closeness and difficulty of the issues decided. See Teague, 35 F.3d at 996. Although the losing party's good faith in pursuing an action is a “virtual prerequisite” to receiving relief from the normal operation of Rule 54(d)(1), that party's good faith, standing alone, is an insufficient basis for refusing to assess costs against that party. See id. With these principles in hand, we turn to the district court's denial of costs in this case”)
Cherry v. Champion Int'l Corp., 186 F.3d 442, 449 (4th Cir. 1999) (“Champion asserts that videotaping Cherry's deposition was necessary to enhance its chances of effectively impeaching Cherry at trial. While that may be so, § 1920(2), read in conjunction with Rule 30(b)(2), requires more. The concept of necessity for use in the case connotes something more than convenience or duplication to ensure alternative methods for presenting materials at trial. See Fogleman v. ARAMCO (Arabian American Oil Co.), 920 F.2d 278, 285 (5th Cir.1991) (stating that deposition costs reasonably incurred for trial preparation or for use at trial, “rather than for the mere convenience of counsel,” constitute taxable costs under 28 U.S.C. § 1920(2)). While there surely are circumstances when both a videotape and a transcript of a deposition may be necessary, Champion has not made the showing why either a transcript or a videotape would not have been sufficient for the need it identified. We cannot conclude that the district court abused its discretion in concluding, based upon the circumstances of this case, that it would deny both the cost to videotape and the cost to transcribe Cherry's deposition testimony. Accordingly, we will allow only transcription costs”)
Thomasson v. GC Services Limited Partnership, 2007 WL 3203037, Case No. 05-cv-0940-LAB-CAB (S. D. California October 29, 2007) (argument of inability to pay costs, as way to avoid taxation, should be based on substantial documentation of a genuine inability to pay, citing McGill v. Faulkner, 18 F.3d 456, 459 (7th Cir. 1994))
Teter v. Project Veritas, et al., 2022 WL 989229 (W. D. North Carolina March 31, 2022) (providing examples of when videography is necessary and reasonable above and beyond stenography, saying that videography was taxable where the deponent demonstrated physical gestures and answered questions by pointing to visual exhibits, whereas videography would not be taxed on the grounds of unnecessary expense where the sole purpose was to play video clips for impeachment purposes at trial, since the stenographic transcript would serve that function just as well)
Craftsman Limousine, Inc., et al. v. Ford Motor Company, et al., 579 F.3d 894 (8th Cir. 2009) (while 28 USC 1920 doesn’t explicitly refer to taxability of videotaping, video depositions are allowed by rule, implicitly authorizing taxation of such costs)
Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471, 1477 (10th Cir. 1997) (28 USC 1920 implicitly permits taxation of costs of video deposition)
St. Francis Medical Center, et al. v. C. R. Bard, Inc., 2010 WL 1980328 (E. D. Missouri May 18, 2010) (court declined to tax video costs against losing plaintiff where some witnesses were noticed by plaintiff, not defendant, and such witnesses were defendant’s own employees or experts; the implication being that the duplicative method of recording that the noticing plaintiff did not choose, and which were of employees or experts or consultants of defendant, were not “necessarily obtained for use in the case,” especially where such were not cited by Defendant in its summary judgment motion; court also declined to tax text/video synchronization expenses)
Kriegel v. St. Thomas Beach Resorts, Inc., 1981 WL 704985, Case No. 78 – 362 (D. Virgin Islands Feb. 26, 1981) (example of outdated decision saying that videotape depositions cannot be taxed as costs absent agreement by the parties or advance court order)
