Video or Stenograph? eDiscovery Cost Shifting in the 21st Century

13 Mar 2013

Stenographers have always been a cornerstone of the legal community. Their transcripts are essential for presenting deposition evidence to a judge or for use in cross-examinationn at trial. However, with the onset of video depositions, one has to wonder, is stenography becoming something of a legal relic?

In Amana Society, Inc. v. Excel Engineering, Inc. No. 10-CV-168-LRR (Iowa D.Ct. 2013), a federal district court in Iowa was presented with the question: Can a prevailing party be awarded costs for both video depositions and their transcriptions?

Under 28 U.S.C. § 1920, federal courts may tax deposition costs to a losing party if the deposition was necessary for the case and not purely investigative. However, in 2008, Section 1920 was amended to state cost shifting is available for “printed or electronically recorded transcripts.” 28 U.S.C. § 1920(2). Some courts have interpreted this statute as meaning a prevailing party could recover EITHER stenographic transcripts or the cost of video depositions, but not both. Id., citing EEOC v. CRST Van Expedited, Inc., 2010 WL 520564-2010.

However, this is not the only interpretation of Section 1920. Other courts have found that the statute allows for recovery of both written and video transcripts, interpreting the language as not necessarily requiring only one or the other. See, for example, In re Ricoh Co. Ltd. Patent Litig.661 F.3d 1361(Fed. Cir. 2011). One common theme for the courts awarding both video and written costs is that the courts found in those cases that both video and written transcripts were absolutely necessary.

The Amana court disallowed all the video deposition costs, except for one that was used at trial (but then disallowed the written transcription costs for that same deposition, pursuant to its interpretation of Section 1920(2) as an “either/or” situation).

ILS – Plaintiff Electronic Discovery Experts