Tilton v. Capital Cities/ABC, Inc., 96-5041

• Decision Date: 18 June 1997
• Docket Number: No. 96-5041,96-5041
• Parties: , 25 Media L. Rep. 1917, 97 CJ C.A.R. 946 Robert G. TILTON, Plaintiff--Appellant, v. CAPITAL CITIES/ABC, INC., a New York corporation; American Broadcasting Companies, Inc., a Delaware corporation; ABC News, Inc., a Delaware corporation; Diane Sawyer; Robbie Gordon; Kelley Sutherland, Defendants--Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1471

115 F.3d 1471

38 Fed.R.Serv.3d 181, 25 Media L. Rep.

1917, 97 CJ C.A.R. 946

Robert G. TILTON, Plaintiff--Appellant, v. CAPITAL CITIES/ABC, INC., a New York corporation; American Broadcasting Companies, Inc., a Delaware corporation; ABC News, Inc., a Delaware corporation; Diane Sawyer; Robbie Gordon; Kelley Sutherland, Defendants--Appellees.

No. 96-5041.

United States Court of Appeals Tenth Circuit.

June 18, 1997.

Submitted on the briefs: ^*

J.C. Joyce, Sheila M. Bradley, Joyce and Pollard, Tulsa, OK, on the briefs, for Plaintiff-Appellant.

Floyd Abrams, Susan Buckley, David G. Januszewski, Cahill, Gordon & Reindel, New York City, Clyde A. Muchmore, Mark S. Grossman, Crowe & Dunlevy, Oklahoma City, OK, on the brief, for Defendants-Appellees.

Before TACHA, BRISCOE and MURPHY, Circuit Judges.

TACHA, Circuit Judge.

Robert G. Tilton appeals the order of the district court taxing him $135,830.34 in costs pursuant to 28 U.S.C. § 1920 and Federal Rule of Civil Procedure 54(d). Tilton argues that the district court erred in taxing: (1) the transcription costs of forty-eight depositions, (2) the travel and subsistence expenses of ten deponents, (3) the copying costs of a number of deposition exhibits, trial exhibits, imaged documents, and third-party discovery documents, (4) the preparation and transcription costs of seven videotaped depositions, and (5) the translation costs for exhibits used as part of a deposition. We have jurisdiction pursuant to 28 U.S.C. § 1291. For the reasons set forth below, we affirm. ¹

BACKGROUND

In 1992, Tilton sued Capital Cities/ABC, Inc., American Broadcasting Companies, Inc., ABC News, Inc., and several employees of American Broadcasting Companies, Inc., for libel and false light invasion of privacy arising out of the broadcast of two television programs in 1991 and 1992. The district court granted summary judgment in favor of all the defendants. We affirmed the orders of the district court granting summary judgment on August 27, 1996. Tilton v. Capital Cities/ABC, Inc., 95 F.3d 32 (10th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 947, 136 L.Ed.2d 836 (1997).

On July 3, 1995, the defendants filed a bill of costs in the amount of $144,081.47 with the clerk of the district court. Tilton objected to the defendants' bill, arguing that almost all of the items were unnecessary or unallowable. On September 14, 1995, the clerk taxed costs against Tilton in the amount of $138,700.24. Tilton sought review of the award with the district court, again arguing that almost all of the items were unnecessary or unallowable. On review, the district court reduced the costs taxed to $135,830.34, concluding that the defendants' rush charges were not recoverable. Tilton now appeals the district court's order.

DISCUSSION

I. TRANSCRIPTION COSTS FOR DEPOSITIONS

Section 1920(2) provides for taxation of "[f]ees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case." 28 U.S.C. § 1920(2). In this case, the parties deposed sixty-nine individuals (fifty-nine by the defendants and ten by the plaintiff) for which the defendants sought transcription costs. The clerk taxed Tilton $48,614.44 for the transcription costs associated with sixty-two depositions but denied the transcription costs associated with seven depositions. In seeking review by the district court, Tilton argued that most of these depositions were unnecessary, irrelevant, and cumulative. On review, the district court upheld the taxation of costs. The court stated:

Upon review, the Court is satisfied that the depositions which were cited in or submitted with the parties' briefs in regard to the summary judgment motions were necessarily obtained for use in this case. Although the Court did not expressly cite to each and every deposition in its written order, the Court considered all of the depositions submitted in determining whether summary judgment in favor of Defendants was appropriate. ...

....

As to the remaining depositions which were not cited in or submitted with the parties' briefs, the Court concludes that the depositions were necessarily obtained for use in the case. The Court finds that these depositions were not taken simply for investigative purposes or for the convenience of counsel as argued by Plaintiff. Moreover, the Court finds that these depositions were relevant to the issues in the case. The court therefore finds that the costs for these depositions were properly taxed.

Tilton v. Capital Cities/ABC, Inc., No. 92-C-1032-BU, slip op. at 2-3 (N.D.Okla. Jan. 5, 1996) (emphasis added).

On appeal, Tilton argues that the district court abused its discretion in taxing the transcription costs associated with forty-eight of the sixty-two depositions. Tilton argues that the depositions were irrelevant and cumulative and thus asserts that the depositions were not "necessarily obtained for use in the case" as required by section 1920(2).

We will not disturb the district court's determination regarding what deposition costs are reasonably necessary to the litigation absent an abuse of discretion. Gibson v. Greater Park City Co., 818 F.2d 722, 725 (10th Cir.1987). A district court does not abuse its discretion in taxing transcription costs associated with depositions that were "actually utilized by the court in considering [the defendant's] motion for summary judgment." Merrick v. Northern Natural Gas Co., 911 F.2d 426, 434-35 (10th Cir.1990); see also Gibson, 818 F.2d at 725 (finding no abuse of discretion in allowing a defendant to recover the costs of several depositions when the court relied on the depositions in deciding the case).

Of the forty-eight depositions at issue on appeal, the parties submitted all but four in support of their summary judgment briefs. The district court expressly stated that he relied on "all of the depositions submitted in determining whether summary judgment was appropriate." Under these circumstances, we hold that the district court did not abuse its discretion in taxing the transcription costs associated with the depositions submitted by the parties in support of their summary judgment motions. Although we would have preferred a more detailed explanation of the district court's decision to allow the deposition costs, the record contains no evidence that the district court abused its discretion in taxing the cost of deposition copies to plaintiff.

With respect to the four depositions that the parties did not submit with their summary judgment briefs (Ann Boatman, James Deaton, Barbara Miller--Volume 1, and Harold Watts), we do not consider whether the district court abused its discretion in taxing the transcription costs because the plaintiff has not included those depositions in the appellant's appendix. In this circuit and under the Federal Rules, the appellant bears the responsibility of providing this court with "an appendix sufficient for consideration and determination of the issues on appeal." 10th Cir. R. 30.1.1; see also Fed. R.App. P. 30; Shearson Lehman Bros., Inc. v. M & L Inv., 10 F.3d 1510, 1515 (10th Cir.1993). Thus, when challenging the taxation of costs associated with a particular deposition because it was not necessarily obtained, the appellant's appendix must include the challenged deposition. Tilton has failed to provide us with the depositions of Boatman, Deaton, Miller--Volume 1, and Watts. Because the appellant's appendix is insufficient to permit assessment of this claim of error, we must affirm. See Deines v. Vermeer Mfg. Co., 969 F.2d 977, 979-80 (10th Cir.1992).

II. WITNESS SUBSISTENCE EXPENSES AND TRAVEL COSTS

Section 1920(3) provides for taxation of "[f]ees and disbursements for ... witnesses." 28 U.S.C. § 1920(3). In this case, the defendants sought reimbursement for the travel and subsistence expenses of twelve deponents. The clerk taxed the defendants $5,395.40 for the travel and subsistence expenses of ten deponents. Before the district court, Tilton objected to the taxation of witness travel and subsistence expenses on two grounds. First, Tilton argued that the depositions were not necessary. Second, Tilton argued that travel mileage costs in excess of 100 miles are not recoverable. On review, the district court concluded that the clerk's taxation of the witnesses' travel and subsistence expenses was appropriate.

On appeal, Tilton objects to the award on three grounds. First, Tilton contends that because he and the defendants each agreed to pay one-half of the travel costs of deponents who resided more than 100 miles from Tulsa, the defendants cannot recover the costs as a prevailing party. Second, Tilton argues that the district court should have limited the recovery of the deponent's subsistence expenses to the government's per diem amount under 28 U.S.C. § 1821(d)(2). Finally, Tilton reiterates his argument that travel mileage costs in excess of 100 miles are not taxable.

We do not address Tilton's first two arguments because he raises them for the first time on appeal. See Sac & Fox Nation v. Hanson, 47 F.3d 1061, 1063 (10th Cir.) (holding that an appellate court will not consider an argument for the first time on appeal "except for the most manifest error"), cert. denied, 516 U.S. 810, 116 S.Ct. 57, 133 L.Ed.2d 21 (1995). We therefore proceed to address Tilton's argument that the district court abused its discretion in taxing the travel mileage costs in excess of 100 miles. Tilton argues that because Federal Rule of Civil Procedure 45(e) does not permit the service of subpoenas outside the judicial district more than 100 miles from the place of trial, a party cannot recover transportation expenses in excess of the 100-mile limit absent special circumstances. We rejected this argument in Fleet Inv. Co., Inc. v. Rogers, 620 F.2d 792 (10th Cir.1980):

[A]ppellant challenges the district court's award of travel mileage costs of four witnesses beyond the 100-mile limit specified...