YANOFF, JSC t/a (Retired, on recall)
The issue here is the determination of costs, including travel expenses, for the taking of depositions of witnesses de bene esse in Florida. There is little controlling authority.
The relevant New Jersey statute is N.J.S.A. 22A:2-8 and the applicable rule is R.4:42-8(a). N.J.S.A. 22A:2-8 provides for "The legal fees of witnesses, including mileage for each attendance, masters, commissioners; The costs of taking depositions when taxable, by order of the court."
The reported cases deal with the taking of depositions. While this is not precisely the situation before me because what plaintiff seeks is the taking of testimony to be used at trial, the outcome in the deposition cases is relevant.
In Finch, Pruyn & Company v. Martinelli, 108 N.J. Super. 156, 260 A.2d 259 (Ch. Div. 1969), an oft-cited New Jersey case, plaintiff, the prevailing party in a fraudulent conveyance case, applied to have his deposition costs reimbursed. The application was granted as to depositions "necessary and . . . actually used at the trial." Id. at 160. In the course of its pinion the court said:
Costs normally are allowed as of course to a prevailing party, R. 4:42-8(a); however, their allowance is discretionary. In determining what costs may be allowed, in the absence of specific authorization by Supreme Court rule the court must find statutory authority. U.S. Pipe, etc. vs. United Steelworkers of America, 37 N.J. 343, 355, 181 A.2d 353 (1962).
N.J.S.A. 22A:2-8 provides that a party is entitled to include in his bill for costs "his necessary disbursements," including "The costs of taking depositions when taxable, by order of the court."
[Id. at 159 (footnote omitted).]
While "costs" are controlled by statute and rule, subject to the court's discretion, the policy established by the New Jersey Supreme Court is that in general each litigant should bear his or her own expenses in prosecuting and defending his or her individual interests. Sunset Beach Amusement Corp. v. Belk, 33 N.J. 162, 167, 162 A.2d 834 (1960).
In Bung's Bar and Grille vs. Township Council of theTownship of Florence, 206 N.J. Super. 432, 502 A.2d 1198 (Law Div. 1985), a Civil Rights case, the prevailing party in a suit challenging local improvement assessments was hell entitled to recover reasonable costs of expert witnesses.
The approach taken by the Bung's court was that R.4:28-3(a), which speaks to the allowance of costs rather than the Statute, controls. Id. at 480-81. The court relied upon civil rights decisions.
New York civil rules make specific provision for this type of problem. Rule 15 provides:
(a) When a proposed deposition upon oral examination, including a deposition before action or pending appeal, is sought to be taken at a place more than one hundred (100) miles from the courthouse, the court may provide in the order or in any order entered under Rule 30(b), Federal Rules of Civil Procedure, that prior to the examination, the applicant pay the expense of the attendance including a reasonable counsel fee of one attorney for each adversary parry at the place where the deposition is to be taken. The amounts so paid, ...