Perlman v. Feldmann

• Decision Date: 24 September 1953
• Docket Number: Civ. A. No. 3086.
• Citation: 116 F. Supp. 102
• Court: U.S. District Court — District of Connecticut
• Parties: PERLMAN et al. v. FELDMANN et al.

116 F. Supp. 102

PERLMAN et al. v. FELDMANN et al.

Civ. A. No. 3086.

United States District Court D. Connecticut.

September 24, 1953.

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Pomerantz, Levy, Schreiber & Haudek, by A. L. Pomerantz, and William E. Haudek, New York City, for plaintiffs.

Saltman, Weiss & Connors, by Arthur B. Weiss, Bridgeport, Conn., for plaintiff Perlman.

Proskauer, Rose, Goetz & Mendelsohn, by P. W. Haberman, Jr., and J. Alvin Van Bergh, New York City, for plaintiff Kramer and others.

Gumbart, Corbin, Typer & Cooper, by Morris Tyler and Richard H. Bowerman, New Haven, Conn., for defendant Newport Steel Corp.

Cummings & Lockwood, by Raymond E. Hackett, William H. Timbers and Morgan P. Ames, Stamford, Conn., Sullivan & Cromwell, by Arthur H. Dean, Howard T. Milman and Karl Harr, New York City, for defendant C. Russell Feldmann and others.

HINCKS, Chief Judge.

This is a stockholders' action which was decided in favor of the defendants: the complaint was dismissed. The parties filed their respective bills of costs and their objections to the bills filed by their adversaries. The conflicting contentions were fully argued before the Clerk who has made a meticulous taxation, explained and supported by a careful memorandum. The bill as taxed by the Clerk and his accompanying memorandum may be deemed a part hereof. Thereafter all parties moved for review and the matter was fully heard by the court on oral argument and briefs.

I. The Feldmann Defendants' Costs Reporter's Transcript of Trial Minutes

The most important controversy raised by the motions for review grows out of the taxability of the cost to the defendants of the reporter's fees (a) for the provision of daily copy of transcripts of the trial minutes, (b) of pre-trial depositions, and (c) of pre-trial hearings on preliminary motions.

As to the taxability of the trial minutes, the individual defendants, whose interests were in principle identical and who were all represented both by a firm of Connecticut lawyers and a firm of New York lawyers, claimed as taxable the cost of two copies of the trial minutes which at their request were provided to them on a daily basis by the reporter who of course simultaneously provided the Court with the ribbon copy as delivered. An additional copy was similarly furnished to Newport and to the plaintiffs. The parties, of course, stood the initial cost of the copies obtained by them. The Clerk taxed the cost of one copy only to these defendants (who will be referred to as the "Feldmann defendants" in contradistinction from Newport which as the corporate beneficiary in the action was also a defendant). They contend that he should have taxed the cost of the two copies which they obtained and paid for. The plaintiffs claim that the court is without power to tax the item at all.

This was a complicated case comprising the consolidation of several stockholders' actions. The plaintiffs sought a recovery of $4,000,000 from several defendants. The trial consumed seven days distributed over several weeks. The transcript ran to over 1,200 typed pages.

That the cost of at least one copy of this transcript was necessarily obtained is sufficiently demonstrated by the following facts. It was downright indispensable to me in the long hours spent after trial in the formulation of my findings and opinion, — a task which necessarily had to be deferred until the final briefs were in and other immediate pressures permitted. By that time my memory of the testimony, at best inadequate to retain the mass of information adduced, had naturally faded. It is also noted that the availability of the transcript at that stage greatly facilitated the task both for counsel and the judge. For it made it possible for counsel to key the argument of facts on their briefs to specific pages of the transcript. It thus enabled counsel to present their cases more effectively and greatly assisted me in evaluating the many claims of fact which were asserted.

It might perhaps be argued that this later usefulness of the transcript to the judge did not make it necessary for counsel to obtain a transcript because under the statute, 28 U.S.C.A. § 753, the court had the power to require the reporter to provide him with a copy without charge. This is indeed a provision that, when no transcript has been made at the request and initial expense of counsel, the judge invokes when need arises for some short extract or in some exceptional situation. But it has never been the practice of this court in cases in which no party is paying for a transcript to require the reporter to furnish one for his exclusive use. In such cases, I have always felt that it was the judge's lot to get along as best he could on the strength of his own trial notes, perhaps asking the reporter to read occasional extracts from his shorthand notes to verify or correct the judge's memory and notes. To require a complete transcript in all such cases would impose on the reporter such an intolerable burden as to cause his prompt resignation, leaving the court without means suitably to fill his place. For the basic salaries for reporters, as fixed by the Judicial Conference within the limits of Congressional appropriations, are inadequate to support full-time employment unless augmented by fees from the sale of transcripts. The salaries, rather, are implicitly predicated, I think, upon the assumption that except in exceptional situations the reporters will not generally be required to furnish long transcripts in cases in which he makes no "sales" to a party. That this policy or reasonable concern for the reporter's earnings has official approval is suggested by the Report of the Judicial Conference of the United States covering its September, 1951 meeting, at page 17. And so, my finding that the transcript here was necessarily obtained for use in the case is additionally supported by the fact that, because it was obtained at the initial expense of a party, it was available to me in the post-trial stage of the case.

That transcript on a daily basis was necessarily obtained for use on the trial itself is a conclusion required from the following facts considered against the background of the nature of the case and the courtroom scene. The transcript was frequently used by all counsel in conducting their examinations and in shaping the presentation of their case. I can also attest that it was of great assistance to me during the course of the trial: it helped me to assimilate the testimony as it was received, to shape my rulings on evidence and occasionally to formulate questions of my own to witnesses. Without an available transcript, in a case such as this interminable interruptions and delays result while counsel ask the reporter to search back through his notes to refresh the memory of counsel or the judge as to some item of testimony lurking in the limbo of the prior record for an item important for the formulation of a claim, or an objection, or a ruling. And knowledge that the transcript would later be available to me enabled me to concentrate on the evidence as it was adduced free from the distracting and laborious task of making copious notes. In this connection, it should be observed that the provision of the statute, 28 U.S.C.A. § 753, whereby the judge may require the reporter to supply him with a transcript does not authorize the judge to require copy on a daily basis. For to provide daily copy a reporter must employ assistants at his own expense. And plainly the salaries available to the reporter were not fixed to compensate for such a heavy item of overhead expense.

The plaintiffs, in opposition to the conclusions just indicated, rely principally upon Stallo v. Wagner, 245 F. 636, 639, an equity case in which the Circuit Court of Appeals for the Second Circuit handed down its decision in 1917, at a time when the only statutory authority for the allowance of costs was found in the old Fee Bill of 1853, Rev.Stat. § 983, 28 U.S.C. (Ed.1940) § 830. The questions there before the court were posed by Judge Rogers as follows: "Are the copies of the stenographer's minutes to be regarded as included in the clause (of the old Fee Bill) `copies of papers necessarily obtained for use on trial'? And does equity rule 50 mean anything more than that the fees paid for the copy of the minutes of the stenographer furnished to the court shall be taxed, and not the fees paid for the copy furnished to either of the parties?" To both of these questions the court answered No.

The answer to the first question and the reasoning and authorities upon which the answer was made to rest may not properly be viewed as authority for the proposition that the item now in question is not included in paragraph (2) of Section 1920 of the new Code. For paragraph (2) of Section 1920 the Revisers, with Congressional approval, doubtless intended to make broad enough to incorporate the substance of subdivision (e) of the Court Reporters Act of 1944, 58 Stat. 5, 28 U.S.C. (Ed.1940 Supp.) § 9a. By the first sentence of subdivision (e) of that Act allowance was authorized of: "In the discretion of the court any part or all of the fees for transcripts may be taxed as costs in the case." This provision, I hold, was carried over into the Code of 1948, 28 U.S.C.A. § 1920(2), which reads: "1920. Taxation of costs. A judge or clerk of any court of the United States may tax as costs the following: * * * (2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case * * *."

I think it altogether clear that the statutory extract from subdivision (e) of the Court Reporters Act quoted above was an express expansion of the statutory scope of taxable costs theretofore controlling upon which the Stallo case was predicated. The broadening effect of the Court Reporter Act should be recognized, not ignored, now that occasion has arisen to construe its...