In an unpublished decision that would appear to meet the criteria for citation under CR 76.28(4)(c), the Kentucky Court of Appeals held last year that the cost of copies of depositions is not recoverable and that such a result is “mandated by the unambiguous language of CR 54.04.” Test v. Expressbill, LLC, 2009 WL 3321009 at p. 4 (Ky. App.). The Court also, citing the Thomson/West Kentucky Practice civil rules treatise (authored by Todd McMurtry and me), noted that “[i]n this Commonwealth, allowable costs are generally more circumscribed than that allowed in other jurisdictions.” Id. Experienced litigators normally do not request the cost of copies. If a prevailing party seeks the cost of deposition copies, an exception should be filed within five days as provided for in CR 54.04(2).
Also, there has long been confusion about whether the prevailing party is entitled to the cost of the original stenographic version of a deposition, versus the original videotape, or whether the prevailing party may recover the cost of originals of both steno and video. The cost of a steno transcript of a deposition is normally considerably higher than the cost of a video of the same deposition. In a supplement to the 4th edition of the Kentucky Practice treatise, the authors originally interpreted the 1988 amendment to CR 54.04 to permit the award of costs of either the video or the steno transcript of a deposition, but not both. That interpretation of the Rule survived in the commentary under CR 54.04 in the 5th and 6th editions. However, the Rule governing videotape depositions specifically states that “[v]ideo recorded depositions may be taken in pending actions and shall be taxed as costs.” CR 30.02(4) (emphasis added). Moreover, that Rule provides that a “stenographic transcript, in addition to the video recording, will not be necessary” and that “[a]ny party desiring [a steno] transcript may obtain it at that party’s cost.” CR 30.02(4)(c) (emphasis added). Thus, where a prevailing party took a deposition by video, it appears that a court is required to tax the cost of the original of that video recording, but the prevailing party should bear as its own cost the cost of an additional steno transcript if it decides to obtain one.
The foregoing post includes commentary reprinted from the forthcoming 2011 supplement to Rules of Civil Procedure Annotated, 6th ed. (Vols. 6 & 7, Kentucky Practice Series), by David V. Kramer and Todd V. McMurtry, with permission of the authors and publisher. Copyright (c) 2011 Thomson Reuters. For more information about this publication please visit:
http://store.westlaw.com/rules-of-civil-litigation-annotated-6th-vols-6-7-kentucky/130503/11774808/productdetail.
David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.
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