United States Court of Appeals,

Eleventh Circuit.

No. 94-9175.

Roger Dale MORRISON, Sr., and Linda S. Morrison, PlaintiffsAppellants,

v.

REICHHOLD CHEMICALS, INC., Defendant, Third-Party Plaintiff,

Appellee,

Goodyear Tire and Rubber Company and Industrial Rubber and Safety

Products, Incorporated, Third-Party Defendants.

Oct. 10, 1996.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 4:91-cv-229-RLA), Robert L. Vining, Jr.,

District Judge.

Before HATCHETT, Chief Judge, BIRCH, Circuit Judge, and GODBOLD,

Senior Circuit Judge.

PER CURIAM:

Among various challenged trial errors and costs rulings by the

district court, this appeal presents the first-impression issue for

our circuit of whether video depositions are taxable as costs under

28 U.S.C. § 1920(2) and Federal Rule of Civil Procedure 30(b)(2)

and (3) without such a stipulation by the parties. We affirm all

rulings by the district court with the exception of the taxation of

costs for expert witness fees, which we reverse, and video

depositions, which we reverse in part and remand for further

proceedings consistent with this opinion.

I. BACKGROUND

Plaintiffs-appellants, Roger Dale Morrison, Sr. and Linda S.

Morrison ("the Morrisons"), brought this action for negligence

against defendant-appellee, Reichhold Chemicals, Inc. ("Reichhold")
and sought damages for injuries that Linda Morrison allegedly

suffered as a result of exposure to fumes resulting from a chemical

explosion and fire at the Reichhold Chemical plant in Walker

County, Georgia on July 14, 1991, and for Roger Morrison's loss of

consortium. For the purpose of the trial, Reichhold stipulated

that it would concede negligence if the jury found that Linda

Morrison had been injured and that her injury was a result of

exposure to chemicals from the Reichhold fire. Following a

nine-day trial, the jury rendered a verdict for Reichhold and found

in a special interrogatory that Linda Morrison had not been exposed

to any product of Reichhold.

The Morrisons filed a motion for a judgment notwithstanding

the verdict and, alternatively, for a new trial. Reichhold filed

a motion for taxation of costs against the Morrisons. The district

court entered an order that denied the Morrisons' motion and taxed

costs in the amount of $8,282.10 in favor of Reichhold. The

Morrisons claim that the district court committed four errors in

the course of the trial that require a reversal by this court: (1)

that the district court erred in refusing to allow their toxicology

expert, Jesse Bidanset, to testify; (2) that the district court

abused its discretion and created confusion for the jury in

admitting Linda Morrison's complete set of medical records into

evidence; (3) that the district court erred in its instruction

regarding preponderance of the evidence; and (4) that the trial

court erred in failing to modify its instruction on the admission

of negligence by Reichhold and the use of circumstantial evidence

to prove exposure. We find no merit to the Morrisons' challenge of
 1

In the district court, the Morrisons raised additional

objections to Reichhold's motion to tax costs. The Morrisons

originally objected to Reichhold's motion as procedurally

defective because it was not verified with an affidavit as

required by 28 U.S.C. § 1924. Reichhold conceded to the district

court that its original motion was not in compliance with § 1924

but argued that it was entitled to supplement its motion after

the filing deadline in order to comply with the verification

requirement. The district court allowed Reichhold to supplement

the verification and considered the merits of the bill of costs. 

The Morrisons also objected to various other depositions and

copying costs as excessive, and the district court, upon review

of the depositions, allowed the costs sought by Reichhold. 

Because the Morrisons do not raise either of these issues on

appeal, we do not address the merits here. 

the court's evidentiary rulings and charge to the jury, and we

affirm without discussion the court's denial of their motion for a

judgment notwithstanding the verdict or for a new trial.

II. ANALYSIS

 The Morrisons appeal the district court's grant of

Reichhold's post-trial motion for the taxation of costs. The

Morrisons specifically object to the trial court's award of

$2,208.20 to Reichhold in expert witness fees and $1,168.80 to

Reichhold for the videotaping of several depositions.1 We review

a district court's decision to tax costs for clear abuse of

discretion. Tanker Management, Inc. v. Brunson, 918 F.2d 1524,

1527 (11th Cir.1990).

A. Expert Witness Fees

 With regard to expert witness fees, Reichhold sought

reimbursement for the fees charged by the Morrisons' experts, Dr.

David Bosshardt, Dr. Yune-Gill Jeong, and Mr. Neal Pascal, to

appear at video depositions noticed by the Morrisons and attended
 2

Although Dr. Bosshardt and Dr. Jeong were listed as experts

by the Morrisons, they also were treating physicians of Linda

Morrison. Mr. Pascal was plaintiff's expert in meteorology. 

by counsel for Reichhold. 2 The expert fees charged to Reichhold

for depositions were: Dr. Bosshardt, $225.00; Dr. Jeong, $833.20;

and Mr. Pascal, $1,150.00.

 Rule 54(d)(1) of the Federal Rules of Civil Procedure

provides that "costs ... shall be allowed as of course to the

prevailing party unless the court otherwise directs." Fed.R.Civ.P.

54(d)(1). A witness who appears before a federal court "or before

any person authorized to take his deposition pursuant to any rule

or order of a court of the United States" is entitled to fees and

allowances, including "an attendance fee of $40 per day for each

day's attendance." 28 U.S.C. § 1821(a)(1) & (b) (West 1996).

Section 1920 of title 28 provides that "[a] judge or clerk of any

court of the United States may tax as costs ... [f]ees and

disbursements for printing and witnesses." 28 U.S.C. § 1920(3)

(West 1996). "The logical conclusion from the language and

interrelation of these provisions is that § 1821 specifies the

amount of the fee that must be tendered to a witness, § 1920

provides that a fee may be taxed as a cost, and Rule 54(d) provides

that the cost shall be taxed against the losing party unless the

court otherwise directs." Crawford Fitting Co. v. J.T. Gibbons,

Inc., 482 U.S. 437, 441, 107 S.Ct. 2494, 2497, 96 L.Ed.2d 385

(1987).

 In Crawford, the Supreme Court held that, "when a prevailing

party seeks reimbursement for fees paid to its own expert

witnesses, a federal court is bound by the limit of § 1821(b),
absent contract or explicit statutory authority to the contrary."

Id. at 439, 107 S.Ct. at 2496. The district court attempted to

distinguish the holding in Crawford from this case by noting that

in Crawford,

the Court did not decide whether a losing party could be

required to pay the fee charged by his expert witnesses when

they were deposed by the winning party. Although this court

recognizes that there is language in Crawford Fitting which

indicates that no fee other than the $40 witness fee permitted

by 28 U.S.C. § 1821 would be allowable, this court also

believes that such an interpretation would be contrary to fair

play and common sense.

Technically, an expert identified by one party and

deposed by the other party is entitled to [a] fee of only $40

per day. However, that is not how the modern, real world

operates. It is a common practice for an expert to charge

considerably more than $40 per day for his testimony....

Recognizing that a party is virtually held hostage to the fee

charged by the opposing party's experts, this court holds that

the winning party is entitled to reimbursement for the fees

charged by the losing party's expert witnesses.

R14-130-6-7. Although we appreciate the district court's

frustration with the disparity between economic reality and

statutory imperative, we cannot ignore the Supreme Court's direct

statements to the contrary:

We think that it is clear that in §§ 1920 and 1821, Congress

comprehensively addressed the taxation of fees for litigants'

witnesses. This conclusion is all the more compelling when we

consider that § 1920(6) allows the taxation, as a cost, of the

compensation of court-appointed expert witnesses. There is no

provision that sets a limit on the compensation for

court-appointed expert witnesses in the way that § 1821(b)

sets a limit for litigants' witnesses. It is therefore clear

that when Congress meant to set a limit on fees, it knew how

to do so. We think that the inescapable effect of these

sections in combination is that a federal court may tax expert

witness fees in excess of the $[40]-per-day limit set out in

§ 1821(b) only when the witness is court-appointed. The

discretion granted by Rule 54(d) is not a power to evade this

specific congressional command. Rather, it is solely a power

to decline to tax, as costs, the items enumerated in § 1920.

Crawford, 482 U.S. at 442, 107 S.Ct. at 2497-98 (emphasis added).
 3

Federal Rule of Civil Procedure 29 provides in relevant

part that, "[u]nless otherwise directed by the court, the parties

may by written stipulation (1) provide that depositions may be

taken before any person, at any time or place, upon any notice,

and in any manner and when so taken may be used like other

depositions...." Fed.R.Civ.P. 29(1). 

Therefore, we find that the district court erred in taxing as costs

any amount for expert witness fees in excess of the $40 per day

allowed under § 1821, and, upon remand, the district court should

reduce the taxable costs accordingly.

B. Videography

 The Morrisons object to the district court's taxation of the

cost of the video depositions of their experts, Dr. Jeong, Dr.

Bosshardt, and Dr. Garretson, and the registered nurse, Billie

Precise, who treated Linda Morrison in the emergency room on the

night of the Reichhold fire. The Morrisons noticed the depositions

of Dr. Jeong, Dr. Bosshardt, and Dr. Garretson. The video

deposition of Billie Precise, however, was taken by Reichhold,

which seeks reimbursement of the costs of obtaining copies of the

video tapes of these depositions as well as $1,090.42 for the cost

of the videographer, who displayed the videos at the trial. The

Morrisons argue that these costs were incurred for the convenience

of the parties and are not items that are taxable as costs against

the losing party.

During the discovery period, the parties filed a stipulation

that, pursuant to Federal Rule of Civil Procedure 29, 3 the

depositions of any and all treating physicians could be videotaped

for use in evidence at trial. The parties also stipulated that,

"[i]n the event any other depositions are taken for evidence in
this case, by Plaintiffs, provisions of this Stipulation shall

apply, and such deposition may be video-taped in accordance with

the terms and provisions hereof." R11-94-1. Finally, the parties

stipulated that "[a]ll of the costs of the video-taping shall be

borne by Plaintiffs, and shall not be taxed as costs against

Defendant," and that Reichhold could copy the videotapes at its own

expense. Id. at 3. However, the parties neither stipulated that

the cost of any copies made by Reichhold would not be taxable as

costs, nor that the cost of any videotaping conducted by Reichhold

would not be taxed to the Morrisons. Therefore, we must address

the issue of whether, absent a stipulation to the contrary, video

depositions are taxable as costs under the United States Code and

Federal Rules of Civil Procedure.

 The Morrisons claim that § 1920 excludes video depositions as

a taxable cost because it mentions only stenographic depositions.

The district court rejected this argument and stated that,

even though 28 U.S.C. § 1920 speaks only of "stenographic"

transcription costs, the court believes that the costs of

video depositions are encompassed by that code section. Video

depositions were virtually unknown at the time that section

1920 was adopted, and this court does not believe that a party

should be penalized because he has chosen to preserve and

present testimony through video as opposed to a printed

transcript. Consequently, the court will allow these costs.

R14-130-6. We conclude that the most logical resolution of this

issue is to interpret § 1920(2) in conjunction with Federal Rule of

Civil Procedure 30(b)(2) and (3). Section 1920(2) permits the

taxing of costs for "[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) (West 1996). Under Federal Rule of

Civil Procedure 30(b)(2) and (3):
 4

Prior to the 1993 amendments, Federal Rule of Civil

Procedure 30(b)(4) provided that the parties could stipulate that

the testimony at a deposition be recorded by other than

stenographic means but that "[a] party may arrange to have a

stenographic transcription made at the party's own expense."

(emphasis added). One federal court summarized the changes to

the rules as follows:

Rule 30(b)(2) is the current provision authorizing the

taking of depositions by other than stenographic means,

and it states that "[a]ny 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.

Garonzik v. Whitman Diner, 910 F.Supp. 167, 171-72

(D.N.J.1995) (alteration in original). 

(2) The party taking the deposition shall state in the

notice the method by which the testimony shall be recorded.

Unless the court orders otherwise, it may be recorded by

sound, sound-and-visual, or stenographic means, and the party

taking the deposition shall bear the cost of the recording.

Any party may arrange for a transcription to be made from the

recording of a deposition taken by nonstenographic means.

(3) With prior notice to the deponent and other parties,

any party may designate another method to record the

deponent's testimony in addition to the method specified by

the person taking the deposition. The additional record or

transcript shall be made at that party's expense unless the

court otherwise orders.

Fed.R.Civ.P. 30(b)(2) and (3) (West 1996).4

 Reading these two

provisions together, we hold that, when a party notices a

deposition to be recorded by nonstenographic means, or by both

stenographic and nonstenographic means, and no objection is raised
 5

Federal Rule of Civil Procedure 26(c) provides in relevant

part:

Upon motion by a party or by the person from whom

discovery is sought, ... the court in the district

where the deposition is to be taken may make any order

which justice requires to protect a party or person

from annoyance, embarrassment, oppression, or undue

burden or expense, including one or more of the

following:

....

(3) that the discovery may be had only by a method

of discovery other than that selected by the party

seeking discovery....

Fed.R.Civ.P. 26(c)(3). The district court's decision to

grant or deny a Rule 26(c) objection becomes the final

determination of the method of recordation of the deposition

that is taxable. 

at that time by the other party to the method of recordation

pursuant to Federal Rule of Civil Procedure 26(c),5

 it is

appropriate under § 1920 to award the cost of conducting the

deposition in the manner noticed.

We recognize that, although our insistence on strict adherence

to the language of §§ 1821 and 1920(3) with regard to the taxation

of expert witness fees may seem to contradict our less literal

interpretation of the phrase "stenographic" in § 1920(2), we have

attempted to remain consistent in our method of statutory

interpretation. In the case of expert witness fees, the Supreme

Court has offered a clear interpretation of the statute that

controls our decision. The Supreme Court has yet to address the

topic of videotaped depositions. When viewed in light of the

Federal Rules of Civil Procedure, which allow depositions to be

recorded in any number of ways, the most logical conclusion is that

"a videotaped deposition is more appropriately taxed as is any
other deposition expense." Jamison v. Cooper, 111 F.R.D. 350, 352

(N.D.Ga.1986); see Commercial Credit Equip. Corp. v. Stamps, 920

F.2d 1361, 1368 (7th Cir.1990) (stating that "[v]ideotaped

depositions are a necessary and time effective method of preserving

witnesses' time and allocating precious court and judicial time in

this age of advanced court technology and over-crowded court

calendars. We must not seem reluctant to adopt any and all

time-saving methods that serve to improve our system of justice").

In this case, however, our determination that the taxation for

the cost of video depositions is allowable under § 1920 does not

end our analysis. We must decide whether the copies of the videos

obtained by Reichhold were "necessarily obtained for use in the

case." 28 U.S.C. § 1920(2). Reichhold has offered no explanation

of why it was necessary to obtain a copy of the video tapes for use

in the case. Because the record is inadequate to resolve this

issue, we remand the case to the district court for further

findings on the necessity of the video copying costs that Reichhold

contends are taxable. We find adequate support in the record for

the necessity of deposing Billie Precise, but we have found no

evidence that Reichhold noticed her deposition to be videotaped

rather than transcribed. It is necessary, therefore, to remand

this portion of the case to the district court to allow Reichhold

to present evidence that it noticed Precise's deposition as a video

deposition. Otherwise, Reichhold will be entitled only to costs,

upon proper proof, in the amount of the cost of a stenographic

transcript.

 With regard to the fee charged by the videographer, it
appears from the invoices attached to Reichhold's motion to tax

costs that a large portion of the $1,090.42 requested was for video

playback equipment rental. We find nothing in § 1920, the Federal

Rules of Civil Procedure, or case law to support the taxation of

costs for equipment rental or fees charged by a videographer for

playback of video depositions at trial. Therefore, we reverse the

district court's taxation of $1,090.42 for the videography costs

during trial.

III. CONCLUSION

The Morrisons have challenged the district court's trial and

costs rulings. We conclude that the district court's evidentiary

rulings and jury charge were correct. Our review, however,

establishes that the district court erred in its taxation of costs

for expert witness fees in excess of the statutory amount of $40

per day. We also conclude that, although the district court was

correct in its determination that costs of video depositions are

taxable under § 1920(2), it is necessary to remand the case for a

determination of whether the costs incurred by Reichhold with

regard to video deposition tapes were "necessarily obtained for use

in the case" and whether the deposition of Billie Precise was

noticed properly. Accordingly, we remand with instructions to

reduce the taxation of expert witness fees to the statutory amount,

to vacate the taxation of the videography costs during trial, to

determine whether it was necessary for Reichhold to obtain copies

of the video depositions of Dr. Jeong, Dr. Bosshardt, and Dr.

Garretson, to determine whether Billie Precise's deposition was

noticed as a video deposition, and to tax the appropriate costs.
AFFIRMED in part, REVERSED in part, and REMANDED.