No. 94-544

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

SHAUN GILLULY,

Plaintiff and Appellant,

-vs -

KIE MILLER,

Defendant and Respondent.

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and for the County of Gallatin,

The Honorable Larry W. Moran, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Stephen D. Roberts, Attorney at Law,

Bozeman, Montana

For Respondent:

Gene I. Brown, Steve Reida, Attorneys at Law,

Bozeman, Montana

Submitted on Briefs: February 16, 1995

Decided: March 16, 1995

Filed:
Justice W. William Leaphart delivered the Opinion of the Court.

Plaintiff, Shaun Gilluly, appeals from the decision of the

Eighteenth Judicial District Court disallowing as costs the expense

of videotaped depositions used by the plaintiff at trial in which

the jury returned a verdict for the plaintiff. We reverse.

Backqround

Plaintiff Shaun Gilluly filed a complaint for injuries he

received to his neck and upper back in a rear-end collision caused

by the defendant, Kie Miller. Gilluly sought recovery under a

negligence claim for his compensatory damages and also sought

punitive damages on the basis that Miller was highly intoxicated

when he caused the collision.

Prior to trial, Gilluly took three video taped depositions to

perpetuate the testimony of witnesses who would be out of state at

the time of trial. These witnesses were Gilluly's former coworker,

Shannon Williams, a California resident; Joseph Kasperick; and

treating physician Dr. Frank Seitz.

The case was tried before a jury. The video tape perpetuation

deposition testimony of Williams, Kasperick and Dr. Seitz was

presented to the jury by the plaintiff, without objection from the

defendant. The jury returned verdicts for the plaintiff in the

total amount of $95,283, of which $80,283 was compensatory damages

and $15,000 was punitive damages.

Following entry of judgments for the plaintiff for

compensatory and punitive damages, plaintiff filed his memorandum

of costs and disbursements. Plaintiff requested that the defendant

2
be assessed costs for the videotape and transcript of the

perpetuation depositions of Williams in the amount of $649.45;

Kasperick in the amount of $220.50; and Dr. Seitz in the amount of

$742.50. Miller filed an objection to Gilluly's memorandum of

costs contending that Gilluly should be reimbursed only for the

cost of the written deposition transcripts and not for the costs of

videotaping. After a hearing on the matter, the court granted

defendant's request to disallow the $1,284.76 costs of the

videotaped depositions.

1n denying the costs of the video depositions, the District

Court held as follows:

The way I read the statute is that a party certainly has

the right to take video depositions, but that election is

at that party's own expense, otherwise there is an

obligation to produce the witness in court. And since

the witness was the witness for the plaintiff in this

case in lieu of presenting the witness live in court,

they utilized a video deposition and in that way

satisfied their obligation to produce the witness. So it

will be the ruling, counsel, that costs set forth in

plaintiff's bill of costs be reduced by the amount of

$1,284.76.

Standard of Review

1n reviewing a district court's award of costs, the standard

of review is whether the district court abused its discretion.

Erickson v. Dairyland Ins. Co. (1990), 241 Mont. 119, 124-25, 785

P.2d 705, 708.

Issue

Did the District Court err in denying the reasonable expense

of videotaped depositions which were used at trial as recoverable

3
costs under Rule 30(h) (51, M.R.Civ.P.?

Rule 30(h), M.R.Civ.P., provides that any deposition may be

recorded by audio-visual or tape recorded means without a

stenographic record. Subsection (5) of Rule 30(h) provides, l'[tlhe

reasonable expense of recording, editing, and using an audio-visual

or tape recorded deposition may be taxed as costs as provided by

law." Section 25-10-201, MCA, provides:

Costs generally allowable. A party to whom costs

are awarded in an action is entitled to include in his

bill of costs his necessary disbursements, as follows:

. . .

(2) the expenses of takincr depositions; . . . [Emphasis

added.]

We find that our decision in Thayer v. Hicks (1990), 243 Mont.

138, 793 P.2d 704, is controlling. In Thaver, Montana

Merchandising presented the testimony of one of its witnesses at

trial, Tom Jenkins, by means of a video taped deposition. While

the jury viewed the tape, the court and the parties followed along

with written transcripts of the video taped deposition so that the

parties could make objections and the court could rule upon the

objections. In its bill of costs, Montana Merchandizing sought to

charge the expense of both videotaping and transcribing Jenkins'

deposition. Bloomgren claimed that both charges were improper. In

concluding that the charges were taxable, this Court stated:

As we noted earlier, the costs of a deposition used

at trial are properly taxable. Cash 210 Mont. at 333,

684 P.2d at 1048. Further=, Rule 30(h) (5),

M.R.Civ.P., provides, "The reasonable expense of

recording, editing, and using an audio-visual or tape

recorded deposition may be taxed as costs as provided by

law." This rule, however, remains subject to the

4
limitation that the audio visual or tape recording must

be used at trial before the expenses incurred in

obtaining such a deposition may be charged to the

opposing party. In this case, both the video tape and

the written transcript of Jenkins' deposition were used

at trial, therefore, the expenses of both may be charged

to Bloomgren.

Thaver, 793 P.2d at 798.

Miller contends that the District Court's denial of video

taped depositions as actual costs follows strong precedent from

this Court that the prevailing party's costs of depositions are not

awardable when the deposition is taken solely for the party's own

convenience. Although Miller did not object to the video

depositions at the time of trial, Miller contends that Dr. Seitz

and Joe Kasperick could have been subpoenaed for appearance at

trial. Thus, Miller contends that presentation of their video

taped depositions was solely for Gilluly's own "convenience."

Miller relies on our decisions in Morrison-Maierle, Inc. v. Selsco

(1980), 186 Mont. 180, 606 P.2d 1085, and Lovely v. Burroughs Corp.

(1974), 165 Mont. 209, 527 P.2d 557. Neither one of these

decisions stands for the proposition that a party cannot properly

tax the costs of a deposition (be it video or transcribed) used at

trial unless the party shows that the witness could not have been

subpoenaed to appear at trial. In Morrison-Maierle, the question

was whether Morrison-Maierle could properly be awarded costs for

the expense of a deposition transcript that Morrison-Maierle

provided to Selsco which then used it as evidence at trail. In
affirming an award of costs for this deposition,l we stated:

Since it was so used, we conclude that it was properly

part of the costs of the action. The distinction is that

if a deposition is taken solely for a party's own

convenience, he cannot properly charge it to the other

party as part of the costs. Lovely v. Burroughs Corv.

(1974), 165 Mont. 209, 527 P.2d 557, appeal after remand

169 Mont. 454, 548 P.2d 610; Johnson v. Furquson, et al.

(1971), 158 Mont. 170, 489 P.2d 1032. Here the copy was

furnished to [Selscol at [Morrison-Maierle'sl expense[],

and used by [Selscol at trial. It has no ground to

complain.

Morrison-Maierle, 606 P.Zd at 1088.

In Lovely, we cited our decision in Johnson v. Furguson et al.

(1971), 158 Mont. 170, 489 P.2d 1032, for the proposition that

depositions taken for the convenience of the deposing party in

marshalling his own case must be borne by that party. Lovely, 527

P.2d at 563.

In Johnson, 489 P.2d at 1035, this Court denied an award of

costs for deposition expenses stating,

It cannot be included in his bill of costs because that

deposition was obviously a discovery deposition for

defendant's benefit. The deposition was never filed with

the district court and plaintiff's counsel did not have

any practical means of securing a copy.

1 It shoul

Morrison-Maierle,

The last sentence

.d be noted that in the published opinion of

606 P.2d at 1088, there is a typographical error.

of the published opinion reads as follows: "With

the exception of the Wetstein devosition which should be excluded

as an item of costs, the judgment of the District Court is

affirmed." (Emphasis added.) It is clear from reading the Court's

opinion that the Wetstein deposition was to be includedas an item of

costs and that the partial transcript of the trial was to be

excluded as an item of costs. Accordingly, the opinion should

read: "With the exception of the partial trial transcript which

should be excluded as an item of costs, the judgment of the

District Court is affirmed."

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We conclude that depositions which are not used at trial are

for the "convenience of counsel " and are not recoverable costs. On

the other hand, expenses incurred in taking depositions which are

filed with the district court and are used at trial are not for the

"convenience" of the litigant and, thus, constitute recoverable

costs under Rule 30(h) (5), M.R.Civ.P. See Sage v. Rogers (1993),

257 Mont. 229, 242, 848 P.2d 1034, 1042 and Cash v. Otis Elevator

Co. (1984), 210 Mont. 319, 684 P.Zd 1041, in which we recognized

that costs of a deposition used at trial for impeachment are

allowable.

The lower court abused its discretion in denying as costs the

reasonable expense of video depositions which were used at trial.

We conclude that the costs associated with video depositions

used at trial are not for the convenience of the parties and are

therefore allowable costs under Rule 30(h) (5), M.R.Civ.P.

Reversed.

We concur.
March 16, 19! ?5

CERTIFICATE OF 2 ;ERVICE

I hereby certify that the following certified order was

following named:

sent by United States mail, prepaid, to the

Stephen D. Roberts

1700 W. Koch St., Suite 5

Bozeman, MT 59715

Gene I. Brown

Steve Reid

P.O. Box One

Bozeman, MT 59771-0001

LERK OF THE SUPREME COURT

MONTANA

B!

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