United States v. Kolesar

• Decision Date: 27 February 1963
• Docket Number: No. 19640.,19640.
• Citation: 313 F.2d 835
• Parties: UNITED STATES of America, Appellant, v. Marrian KOLESAR and Andrew Kolesar, her husband, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

313 F.2d 835 (1963)

UNITED STATES of America, Appellant, v. Marrian KOLESAR and Andrew Kolesar, her husband, Appellees.

No. 19640.

United States Court of Appeals Fifth Circuit.

February 27, 1963.

Daniel S. Pearson, Asst. U. S. Atty., Miami, Fla., Alan S. Rosenthal, John C. Eldridge, Attys., Dept. of Justice, Washington, D. C., Joseph D. Guilfoyle, Acting Asst. Atty. Gen., Edward F. Boardman, U. S. Atty., for appellant.

Richard F. Ralph, E. S. Corlett, III, Miami, Fla.; Sherouse & Corlett, Miami, Fla., of counsel, for appellees.

Before BROWN, GEWIN and BELL, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

This appeal, small in amount and simple in the issue it presents, is urged on us by the Government because, so it says, of the importance of the question in the disposition of the great volume of tort litigation against it. Precisely, the question is whether in a successful suit under the Federal Torts Claims Act, 28 U.S.C.A. §§ 1346(b), 2671 et seq., the Court can tax the costs against the Government for (a) expert witness fees or (b) the cost of a copy of pretrial depositions. The District Court sustained the Clerk's taxation of the costs, F.R.Civ.P. 54(d), over the objection of the Government.¹

Actually our problem is even more simplified because, subsequent to the time of the District Court's order, we have categorically determined that expert witness fees are not taxable under 28 U.S.C.A. § 1821. Green v. American Tobacco Co., 5 Cir., 1962, 304 F.2d 70. This is the rule for private litigants. Nothing in the FTCA, or the policy behind it, affords any basis for a more liberal rule against the Government.

However as to the cost for copies of a deposition, we think that the express reference to court costs for FTCA suits² requires that we analyze the problem as though the case were between private litigants. This is the approach which the Government has taken both in its brief and on the argument.³

Before getting into the more troublesome question as to copies of a deposition, it is helpful to put several things at rest. First, no real dispute has been raised as to the Government's underlying contention that taxation of particular items of costs in legal (as distinguished from equitable) actions depends upon a statute. We can for our present purposes assume that this is substantially correct.⁴ Next, there is the matter of the status of costs incurred for obtaining the original of a deposition. This, as is true of the problem under review concerning copies, brings into play § 1920(2) which allows:

"Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case."⁵

Though § 1920(2) does not specifically mention a deposition, we agree with prior decisions suggesting that depositions are included by implication in the phrase "stenographic transcript."⁶ The fact that the reporter-stenographer actually taking the deposition is not the official court reporter of that particular Court⁷ is of no more consequence as to depositions than it would be as to trial evidence taken by a substitute non-official reporter with consent of the Court.⁸ Of course that factor might require special scrutiny as to the basis and reasonableness of the charges rendered.

This brings us then to the question of costs for a copy of a deposition obtained by counsel for his use. We have not heretofore ruled on this, nor, so far as we have been informed, has any other Court of Appeals.⁹ The Government urges, however, that by our action in an analogous situation, we are committed to its view,¹⁰ and that in any event a great number of District Court opinions reflects a unanimity and view so obviously correct that if not bound by them, we must accept them for their sheer persuasiveness. In McWilliams Dredging Co., we held that a copy of a transcript of the trial evidence obtained by counsel (apparently on a daily copy basis) for use during the trial was not taxable. While some language in the opinion might be read as bearing on a copy of a deposition, we think for the reasons later discussed the decision neither answers nor forecloses the problem at hand.

Of the District Court opinions, one especially urged and often cited is that of Judge Hincks in Perlman v. Feldmann, D.Conn., 1953, 116 F.Supp. 102, 110. With characteristic skill, Judge Hincks elaborates what is here the Government's opening and closing refrain: a copy of a deposition is not, as § 1920(2) phrases it, "necessarily obtained for use in the case" since the original of the deposition is on file and may be examined and used by counsel in the Clerk's office. In view of this physical access, Judge Hincks reasoned that, as with many other expenses of a lawyer and a law office, including frequently substantial ones incurred in preparation of a case for trial — the copies had to be charged off as a convenience to counsel. Being nothing more than a mere convenience, the costs may not be taxed. We think this is the strongest argument marshalled by the Government.¹¹ Likewise, we consider that it is not supportable.

Conceding, as we must, that the trial court's discretion in taxing costs — broad as it has to be — does not extend it to taxing as a cost an item not permitted by controlling law,¹² we think that by the very nature of the problem whether something is "necessarily obtained for use in the case," § 1920(2), inevitably calls for a factual evaluation. Common sense is compelling that Congress committed that task to the District Judge.

Once it is recognized that Congress contemplated that it would be necessary to determine what items actually came within those expressly listed, e. g., § 1821, § 1920(3), there is an abundance of common sense to justify a court allowing the costs of a deposition copy. We need mention only a few. To begin with, access in the Clerk's office frequently is only theoretical. This Circuit with its six mainland states and 17 judicial districts has a number of division points far removed from the many county seats or other principal towns in which counsel reside and have their offices.¹³ It is artificial to suggest that it is a mere matter of "convenience" that a busy lawyer obtains a copy to spare himself a 75 to 150-mile trip.¹⁴

Even more fundamental, such a construction ignores the practicalities of preparation of a case for trial. This flies right in the very teeth of modern pretrial techniques which the Federal Rules of Civil Procedure afford, and which the Judiciary — by action, decision and administrative hierarchical agency projects — presses on all sides as one of the most effective weapons in the despairing task of coping with an ever increasing backlog of cases awaiting trial.¹⁵ The key to pretrial is effective discovery. And discovery more and more rests on the wide latitude allowed in pretrial depositions.¹⁶ Frequently one deposition leads to another.¹⁷ In the process of taking a number of depositions at points and times scattered over the whole country, the fact that in the courthouse a thousand miles away there reposes an original of the deposition hardly serves the need then and there existing for a usable present copy.

To speak of a busy lawyer having to go to a Clerk's office at such times and places of work as the Clerk's regular office hours and facilities can afford for the purpose of making a close study of pretrial depositions is completely unrealistic. If, as the Rules clearly contemplate a party may be compelled to go through the various steps of discovery and pretrial conferences,¹⁸ then it is simply a question whether in the particular circumstances of a specific case, there is a reasonable need that counsel have a copy.

And where, as we have briefly indicated, a copy may be needed before trial, the demand might even be more imperative on the trial itself. Effective cross examination of witnesses frequently rests on availability of pretrial depositions either of that witness or other witnesses. This, as all lawyers — and lawyers-turned-judges — know is not a spur of the moment bit of legal forensics. Like the rest of successful trial advocacy, it depends on preparation. Preparation means selection and that means mechanical aids such as checks, underscoring, marginal notes, and the like. Such liberties can hardly be permitted with the one and only original deposition in the official court files. Conservation of precious court and judge time — one of the objects of effective pretrial — likewise demands that with respect to depositions to be offered as evidence, selectivity is both needed and very desirable.

All of these factors could be multiplied for many pages. It is a fair summary of our collective experience as practitioners that the utility (and necessity) for a deposition is not alone measured by whether all or any part of it is formally offered in evidence as such. A deposition used effectively in cross examination may have its telling effect without so much as a line of it being formally proffered.

What this means, of course, is that someone must determine in the particular context of a specific case just what depositions have been necessary. No one is better equipped for that than the trial Judge. Thus while we reject Judge Hincks' thesis that forbids the cost of a copy of any deposition altogether as a flat inexorable prohibition, we do not by reflex action establish a rule of like rigidity in the opposite direction. On the contrary, we keep it as flexible as the concept of necessity requires. The trial Judge must determine whether all or any part of a copy of any or all of the depositions was "necessarily obtained for use in the case." In that evaluation, great latitude and discretion must be accorded the Judge. Reversal will require an abuse of discretion.

On that standard the taxation of the costs for copies of the depositions in this case readily withstands attack. The suit was for substantial injuries to the wife of the plaintiff, a Chief Petty...