these types of fees is that courts are not in agreement as to their taxability. Those courts that permit the taxation of fees associated with videotape depositions generally allow the costs for preparation and playback, as long as the use of the videotape was reasonably necessary to the trial. See Barber v. Ruth, supra; Commercial Credit Equip. Corp. v. Stamps, supra; Meredith v. Schreiner Transport, Inc., 814 F. Supp. 1004 (D. Kan. 1993); Macaro v. Pratt & Whitney Canada, Inc., supra; Molnar v. Elgin, Joliet & Eastern Railway Co., 697 F. Supp. 306 (N.D. Ill. 1988); Jamison v. Cooper, 111 F.R.D. 350 (N.D. Ga. 1986); Deaton v. Dreis & Krump Mfg. Co., supra; Sack v. Carnegie Mellon Univ., 106 F.R.D. 561 (W.D. Pa. 1985). The court adopts this reasoning and finds that the videotape deposition of Dr. Cotler was reasonably necessary to the litigation. Thus, the expenses for the preparation and playback shall be allowed.
With respect to the fees for transcription, courts differ in their approach to determining their taxability. In Meredith v. Schreiner Transport, Inc., supra, the District Court for the District of Kansas permitted the taxation of transcripts of a videotape deposition, finding that the discretion afforded by § 1920(2) required a court to decide whether the transcript had "a legitimate use independent from or in addition to the videotape which would justify its inclusion in an award of costs." 814 F. Supp. at 1006. The court emphasized that the use of videotape depositions was encouraged, but noted that the tape could fall prey to technical difficulties and that objectionable portions of the tape were more easily edited from a transcript. The court also observed that it is more efficient for an appellate court to review a transcript and that, in many cases, a party insists that the opposing party arrange to have a transcription made as a condition for obtaining an order allowing a videotape deposition. Id. Thus, the court found an independent, legitimate use for the transcript apart from the videotape and allowed the cost to be taxed.
In Molnar v. Elgin, Joliet & Eastern Railway Co., supra, the District Court for the Northern District of Illinois appeared to hold transcripts of videotape depositions necessary in every situation "so that an attorney may decide which portions of the videotape to present to the jury." Id. at 312.
Those courts that have held such transcripts non-taxable primarily have done so on two grounds. One basis is that, as the videotape itself is the original transcript and the best record of the witness' testimony, any additional recording or transcription can only be considered a copy made for the convenience of counsel. Sack v. Carnegie Mellon University, supra.
The more extensive line of cases has held such transcripts non-taxable on the basis of the language of Rule 30(b)(4) as it existed prior to the 1993 amendments. That rule stated that "[a] party may arrange to have a stenographic transcription made at the party's own expense " (emphasis added). The Seventh Circuit in Commercial Credit Equip. Corp. v. Stamps, supra, found this language to be an express exception to the general presumption in Rule 54(d) that costs should be allowed: "Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course . . ." (emphasis added). 920 F.2d at 1369. Rule 30(b)(4)'s requirement that parties bear their own expenses for stenographic transcripts of videotape depositions removed any discretion from the courts. Id. Accord Barber v. Ruth, supra; Jamison v. Cooper, supra.
The language that these cases have relied upon, however, has been deleted from Rule 30(b). Rule 30(b)(2) is the current provision authorizing the taking of depositions by other than stenographic means, and it states that "any party may arrange for a transcription to be made from the recording of a deposition taken by nonstenographic means." Conspicuously absent is the phrase "at the party's own expense." The court notes that the revised rules contain an express requirement that a party who has noticed a deposition to be taken by other than stenographic means must provide a transcript to opposing parties as part of its discovery obligations. Fed. R. Civ. P. 26(a)(3)(B). That party must also provide a transcript if the video deposition is to be offered as evidence at trial or upon a dispositive motion. Fed. R. Civ. P. 32(c). Thus, under the revised rules, it is clear that a transcript of a videotape deposition is not for the "convenience of counsel," but rather is an express obligation. The shift in language of the new Rule 30(b)(2) renders moot the reasoning of those courts that held that Rule 30(b)(4) contained an express exemption from Rule 54(d)'s allowance of costs for transcripts of videotape depositions. For these reasons, the court finds that the transcript of Dr. Cotler's videotape deposition was necessary to the litigation and will allow the cost of the transcript to be taxed to the defendant pursuant to Rule 54(d).
As for the $ 53.50 cost of preparing a copy of the videotape, the court finds that the plaintiffs have not shown how a copy was reasonably necessary to the trial. This cost shall be disallowed.
IV. TRIAL TRANSCRIPTS
Defendant also objects to the plaintiffs' request for $ 435.00 in trial transcript costs. But for the plaintiffs' action in the initial trial, the defendant argues, a mistrial would not have resulted, and the transcript cost would not have been necessary. Defendant makes a persuasive argument. See Marinne v. Nabisco Brands, 1994 WL 533906 (E.D. Pa. 1994); Taylor v. Westinghouse Elevator Corp., 1989 WL 132840 (E.D. La. 1989). However, Local Rule 23G.6 provides stronger authority for denying the plaintiffs' request to tax the cost of trial transcripts. That rule provides:
The cost of a reporter's transcript is allowable only (i) when specifically requested by the Judge, master, or examiner, or (ii) when it is of a statement by the Judge to be reduced to a formal order, or (iii) if required for the record on appeal. Mere acceptance by the Court of a submitted transcript does not constitute a request. Copies of transcripts for an attorney's own use are not taxable in the absence of a prior order of the Court. All other transcripts of hearings, pretrials and trials will be considered by the Clerk to be for the convenience of the attorney and not taxable as costs.
Local Rule 23G.7. Under this rule, the court has no choice but to determine that the $ 435.00 expense for trial transcripts was incurred for the convenience of counsel and, thus, not taxable.
Plaintiffs request a total of $ 904.93 for "fees for exemplification and copies of papers necessarily obtained for use in the case." 28 U.S.C. § 1920(4). Although the Defendant's arguments are far from a picture of clarity, it appears to contend that plaintiffs have provided no explanation as to why the itemized duplication costs were necessary to the trial. Defendant says that the plaintiffs prepared an unreasonable number of photocopies, presenting trial packages to virtually every individual involved in the case, including court attendants.
Once again, this court's local rules apply a strict rule to the taxability of photocopies. Rule 23G.9 provides that:
The fees for exemplification and copies of papers are taxable when (i) the documents are admitted into evidence or necessarily attached to a document required to be filed and served in support of a dispository motion, and (ii) they are in lieu of originals which are not introduced at the request of opposing counsel. The cost of copies submitted in lieu of originals because of convenience to offering counsel or his client is not taxable. The cost of copies obtained for counsel's own use is not taxable.