N.D. Cal. Notes Split Re Whether Costs of Videotaping Depositions are Recoverable Under Federal Judicial Taxation Statute

Per MEMC Electronic Materials v. Mitsubishi Materials, Slip Copy, 2004 WL 5361246 (N.D.Cal . Oct 22, 2004) (NO. C-01-4925 SBA (JCS)):

With respect to the question of whether fees for video technicians and other costs associated with videotaping are allowable, the Court looks first to the local rule. Rule 54-3(c)(1) provides that prevailing parties are entitled to "the cost of an original and one copy of any deposition (including videotaped deposition) taken for any purpose in connection with the case." Civil L.R. 54-3(c)(1). Admittedly, the phrasing of this rule is vague as to what expenses associated with videotaped depositions are recoverable. The Court concludes, however, that a sensible reading of the rule covers the cost of videotaping and the cost incurred by the court reporter associated with obtaining a stenographic transcription of a deposition, as well as the cost of one copy of the videotape and of the written transcript. The rule does not allow parties to recover the costs of obtaining multiple copies of videos or transcripts. Nor does the rule authorize award of appearance fees or special services such as indexing.

This reading is, for the most part, consistent with the scant case law the Court has found addressing the question of whether the costs associated with videotaping depositions is recoverable under 28 U.S.C. § 1920. For example, in Tilton v. Capital Cities/AB, Inc. ., 115 F.3d 1471 (10th Cir.1997), the court of appeals held that the district court did not err in awarding the costs of both videotaping and transcribing depositions. The Court in Tilton began by holding that the costs associated with videotaping of depositions are taxable under § 1920, reasoning as follows:

We agree with the district court that the costs associated with videotaping a deposition are taxable under section 1920(2). In so holding, we recognize that section 1920(2) does not explicitly provide for the taxation of costs associated with video depositions. Federal Rule of Civil Procedure 30(b)(2)-(3), however, authorizes videotape depositions as an alternative to traditional stenographic depositions.... Interpreting section 1920(2) in conjunction with Rule 30(b)(2)-(3), we hold section 1920(2) implicitly permits taxation of the costs of video depositions. Id. at 1477.

In a footnote, the court noted that "[m]ost courts have agreed that a district court may tax the costs of a video deposition under section 1920(2) ." Id. The court added that "permitting recovery of the costs of video depositions comports with public policy" because videotaping depositions is an efficient way to preserve witness testimony. Id.

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The two cases cited by Plaintiff in support of the position that the cost of videotaping is not recoverable are not persuasive. First, Plaintiff cites to Coates v. Penrod Drilling, 5 F.3d 877, 891 (5th Cir.1993). In that case, the court denied a request for video technician fees on the basis that "[t]hese expenses are not included in § 1920 and therefore are not recoverable." The court, however, does not provide any reasoning in support of this conclusion or cite to any authority. Thus, to the extent the Coates cases suggests the existence of a split of authority between the circuits, this court finds the approach taken by the Tenth Circuit in Tilton more persuasive.