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Legal Issues Involving Video Depositions Revisited

Authors: David Markowitz and former Markowitz Herbold litigator Lynn Nakamoto

Back in 2001, we prepared an article for the Litigation Journal summarizing then current law governing the taking of video depositions in Oregon state and federal courts. Since then, the federal rule citations have slightly changed, so we are taking the opportunity to revisit some of the rules and developments in the taxation of costs relating to video depositions in federal actions, including a ruling last year from the District of Oregon.

The general right to videotape.
In state court, the rules are unchanged. Under ORCP 39 D(2), a deposition is recorded stenographically, or else a party “shall designate the manner of recording and preserving the deposition” in the notice if “by other than stenographic means.” ORCP 39 C(4). By doing so, a party has a right to videotape the deposition. State ex rel Anderson v. Miller, 320 Or 316, 318-19, 882 P2d 1109 (1994). For cause, the right may be curtailed. See ORCP 39 C(4) (for accuracy); ORCP 36 C (protective order); ORCP 39 E (judicial control once the deposition has begun).

In federal court, the numbering and wording of the provisions within FRCP 30 relating to video recordings has changed somewhat, but their substance remains the same. Pursuant to FRCP 30(b)(3), a party “must state in the notice the method for recording the testimony,” and “[u]nless the court orders otherwise, a deposition may be recorded by audio, audiovisual, or stenographic means.” As in Oregon courts, a party in federal court may seek a protective order pursuant to FRCP 26(c) or FRCP 30(d)(3).

Opportunities for multiple means of recording the deposition.
If recording only by non-stenographic means is noticed, ORCP 39 D(2) allows another party or the deponent to have a transcript made upon its request and “payment of the reasonable charges therefor.” FRCP 30(b)(3)(A) provides that “[a]ny party may arrange to transcribe a deposition,” and FRCP 30(b)(3)(B) provides that another party may designate an additional means of recording the deposition and bears the expense “unless the court orders otherwise.”

Recovery of videotaped deposition expenses as a taxable cost.
No recovery of deposition costs remains the rule in Oregon under ORCP 68. On the federal side, though, more courts have weighed in on the issue of whether expenses related to videotaping a deposition may be awarded as costs under 28 U.S.C. § 1920(2). Section 1920(2) allows costs to be taxed for “[f]ees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case.”

Though the Ninth Circuit has not yet addressed the issue, the District of Oregon ruled on it last year. In Nederhiser v. Foxworth, No. CV 05-787-KI, 2007 WL 1378602 (D. Or. May 7, 2007), the defendants sought costs for both stenographic deposition transcripts and for videotaping the deposition of the plaintiff. Id. at *2. The district court recognized that several courts have awarded costs for both videotaping and the transcript. The threshold for an award of such costs in the District of Oregon, however, is a showing that “both are reasonably necessary for the litigation.” Id. The district court ruled that the defendants’ justification for videotaping as well as stenographically recording the plaintiff’s deposition—the defense plan to use video excerpts at trial and the transcript for summary judgment—was insufficient. Id. The district court concluded that “something more is needed beyond convenience or duplication to ensure alternative methods of presenting materials at trial.” Id. (quotation and citation omitted). The Fourth Circuit also permits the cost of either a stenographic transcript or videotaping a deposition to be taxed as a cost, but not both, in the absence of a showing that both were necessarily obtained for use in the case. See Cherry v. Champion Intern. Corp., 186 F.3d 442, 449 (4th Cir. 1999).

The Nederhiser ruling falls between the circuit decision that disallows videotaping as a cost, see Mota v. The University of Texas Houston Health Science Center, 261 F.3d 512, 529-30 (5th Cir. 2001) (§ 1920 should be strictly construed; it has no provision for videotapes of depositions), and the holdings of the majority of circuits to speak on the issue, which generally allow costs for both videotaping and stenographic transcripts. E.g., Morrison v. Reichhold Chemicals, Inc., 97 F.3d 460 (11th Cir. 1996).

In Morrison, the Eleventh Circuit read § 1920 in light of FRCP 30, which permits video and dual recording, and discussed the issue in detail in a case that was tried to a jury. The court held that “when a party notices a deposition to be recorded by non-stenographic means, or by both stenographic and non-stenographic means, and no objection is raised at that time by the other party to the method of recordation,”then it is appropriate to tax “the cost of conducting the deposition in the manner noticed.” Id. at 465. The court reasoned that a stenographic transcript is not obtained merely for the convenience of counsel because of the rule requiring that designations of deposition testimony to be presented at trial include a transcript of pertinent portions of the deposition if not taken stenographically, now FRCP 26(a)(3)(A)(ii), and the rule that a party must provide a transcript of any deposition testimony offered at trial, FRCP 32(c). Id. at 465 n.5.

Three other circuits have agreed with the Eleventh Circuit. See Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471, 1478 (10th Cir. 1997) (“in most cases, a stenographic transcript of a videotaped deposition will be ‘necessarily obtained for use in the case’” as required by § 1920); BDT Products, Inc. v. Lexmark Int’l, Inc., 405 F.3d 415, 419-20 (6th Cir. 2005) (approving Tilton and holding the district court did not abuse its discretion in awarding costs for transcripts plus “charges for video services, rough disc, interactive real-time, video tapes, and the synchronization of the video and deposition transcripts”); Little v. Mitsubishi Motors North America, Inc., 514 F.3d 699, 701-02 (7th Cir. 2008) (given that Rule 30 does not now require a party to arrange for a transcript “at its own expense” when the deposition is recorded by non-stenographic means, expenses for both can be taxed as costs).

The district court in Nederhiser referred to case law from all of the circuits noted above. However, the court did not discuss and reject the reasoning from the cases expressing the current majority rule. The result also apparently turned on the extent of the explanation offered for the necessity of both videotaping and a transcript. And, the cost bill in Nederhiser was not submitted after a trial, where the videotapes were actually used to present evidence. For these reasons, it appears possible for prevailing litigants to expand on the Nederhiser ruling and recover costs for videotaping depositions given the right case.

This article appeared in the summer 2008 issue of the Oregon State Bar's Litigation Journal.