Update: On March 12, 2020, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read an analysis of the oral argument here.

On April 23, 2019, the Supreme Court of Ohio will hear oral argument in Vossman v. AirNet Systems, Inc. et al, 2017-1688. At issue in this case is whether deposition transcripts used for summary judgment are taxable costs under Civ. R. 54(D) and R.C. 2303.21.

Case Background

Dan Vossman (“Vossman”) filed an age discrimination suit on June 15, 2011 against AirNet Systems, Inc. (“AirNet”) after AirNet terminated his 26 years of employment as a pilot. During the discovery process of the case, several depositions were taken. Franklin County Common Pleas Court Judge Stephen McIntosh granted summary judgment to AirNet. Following judgment, Judge McIntosh granted AirNet’s motion for costs to cover $3,641.70 for depositions. This amount included the added expense of expediting two of the deposition transcripts, but did not include the court reporter fees for attending the depositions. Vossman appealed.

The Tenth District Court of Appeals affirmed the trial court’s ruling in a unanimous decision authored by Judge Susan Brown, joined by Judges Lisa Sadler and Timothy Horton.  The court found the trial court was justified in awarding deposition transcript expenses because they were necessary to support the summary judgment motion and because Franklin County local rules require all depositions in support of or in opposition to summary judgment be filed with the motion or responsive pleadings. Vossman appealed to the Supreme Court of Ohio.

Votes to Accept the Case

Yes: Justices Kennedy, Fischer, DeWine, and former Justice DeGenaro

No: Chief Justice O’Connor, former Justice O’Donnell, and Justice French

Key Precedent

Civil Rule 54(D) (Costs) (Except when express provision therefor is made either in a statute or in these rules, costs shall be allowed to the prevailing party unless the court otherwise directs.”)

R.C. 2303.21 (“When it is necessary in an appeal, or other civil action to procure a transcript of a judgment or proceeding, or exemplification of a record, as evidence in such action or for any other purpose, the expense of procuring such transcript or exemplification shall be taxed in the bill of costs and recovered as in other cases.”)

R.C. 2319.27 (governs fees of person taking a deposition)

State ex rel. Commissioners of FrankIin County v. Guilbert, 77 Ohio St. 333 (1907) (“The word ‘costs’ has a legal signification and includes only those expenditures which are by law taxable.”)

Farmer v. Arabian American Oil Co. 379 U.S. 227 (1964)  (the discretion given district judges to tax costs should be sparingly exercised with references to expenses not specifically allowed by statute.)

Benda v. Fana, 10 Ohio St. 2d 259 (1967) (“‘[C]osts’ are not synonymous with expenses unless expressly made so by statute.”)

Barrett v. Singer Co., 60 Ohio St. 2d 7 (1979) (Deposition transcripts not used at trial cannot be taxed as costs.)

Jones v. Pierson, 2 Ohio App. 3d 447 (8th Dist. 1981) (“[N]ecessary litigating expenses are taxable costs pursuant to Civ. R. 54(D); that is, as much of the funds expended by a party as are necessary and vital to the litigation must be characterized as taxable costs which will normally be awarded to the prevailing party.”)

Edison Co. v. Franklin Paper Co., 18 Ohio St. 3d 15 (1985) (“Generally, an unsuccessful litigant is not liable for the litigation expenses . . . of its adversary in the absence of a statute providing for their allowance.”)

Muze v. Mayfield, 61 Ohio St. 3d 173 (1991) (“‘Costs, in the sense the word is generally used in this state, may be defined as being the statutory fees to which * * * [specified individuals] are entitled for their services in an action * * *. The word does not have a fixed legal signification. As originally used it meant an allowance to a party for expenses incurred in prosecuting or defending a suit. Costs did not necessarily cover all of the expenses and they were distinguishable from fees and disbursements. They are allowed only by authority of statute * * *.’”)

Vance v. Roedersheimer, 64 Ohio St. 3d 552 (1992) (“The subject of costs is one entirely of statutory allowance and control.”)

Haller v. Borror, 107 Ohio App.3d 432 (10th Dist. 1995) (“We conclude that a court reporter fee for taking a deposition and for the resulting transcript may be taxed as costs under Civ.R. 54(D) when the action is decided on summary judgment.”)

Williamson v. Ameritech Corp., 81 Ohio St.3d 342 (1998) (RC. 2319.27 does not provide a statutory basis for taxing the services of a court reporter at a deposition as costs under Civ.R. 54(D)(syllabus).

Brodess v. Bagent, 2005-Ohio-20 (10th Dist.) (Pursuant to R.C. 2303.21 and Civ. R. 54, transcripts of depositions that are filed and used for any necessary purpose can be taxed as costs.)

Boomershine et al. v. Lifetime Capital, Inc., et al., 2009-Ohio-2736 (2nd Dist.) (deposition transcripts may be taxed as costs if they are used to support of or in opposition to a motion for summary judgment.)

Vossman’s Argument

The plain text of Civ. R. 54(D) bars the granting of deposition expenses as costs awardable to a party. Costs must be based in statute. The decision in Williamson reinforced this fact. The costs awarded in this case were not authorized by statute or by existing case law. Since at least 1907, the rule has been that there must be a statutory basis for an award of costs.

Court costs under Civ. R. 54(D) are analogous to those under Civ. R. 41(D), which have been held to require statutory authorization. In some instances, statutes have allowed explicitly for the awarding of deposition costs. However, that is not the case here. There is no Ohio statute that expressly allows for depositions or deposition transcripts to be taxed as costs.

This Court has also declined to expand the definition of costs, despite opportunities to do so.  This Court has determined that depositions not used at trial cannot be taxed against a party. Yet, despite a ruling from the Supreme Court of Ohio, some state appellate courts have continued to make contrary rulings. These contrary rulings are also contrary to the American Rule of holding parties responsible for their own respective expenses.

Despite being contrary to this Court’s unanimous decision in Williamson, AirNet has been awarded deposition costs under R.C. 2303.21. Yet, this statute only applies to trial transcripts; it does not mention depositions. Williamson explicitly states that there is no statute permitting the award of deposition costs. Thus, the decisions of both the trial court and the court of appeals are in direct conflict with Williamson.

Attempts have been made in the past to disguise a deposition as a type of proceeding in order to allow the costs to be awarded. However, for this to be true, the deposition must be read at trial for an absent witness. Otherwise, a deposition is not a proceeding, because it is not before a court or judicial officer.

R.C. 2303.21, on its face, is intended for awarding the cost of attaining trial transcripts on appeal. The statute is inapplicable in the present context. Further, because the statute existed at the time of the Williamson decision, the Court’s blanket statement that no statute on record allowed the taxing of deposition therefore applies to R.C. 2303.21. Moreover, the statute never mentions the word “deposition”. To interpret the statute as including depositions would be adding words to the statute that simply are not there.

The Court should be concerned about the potential retaliatory effect of allowing depositions to be taxed as costs. Vindictive parties may take depositions—lacking any necessity—as a means of intentionally burdening their opponents, which is particularly unfair to less affluent litigants.

AirNet is incorrect in its depiction of the facts in Williamson. That decision did concern transcript costs, as evidenced by the appellate court decision as well as the evidentiary record.

AirNet’s Argument

The court of appeals was correct in determining that deposition transcripts needed for summary judgment can be taxed as costs under Rule 54(D) and R.C. 2303.21. The Williamson decision addresses R.C. 2319.27, not R.C. 2303.21. Thus, Vossman’s reliance on that decision is misplaced.

Moreover, Williamson addressed fees for a court reporter. The statute in question in Williamson, R.C. 2319.27, simply sets parameters for the charging of fees by a person taking a deposition. Thus, the Court’s decision that R.C. 2319.27 does not allow for the taxing of such costs is correct. However, the decision is not relevant here because an entirely separate statute is in question. And Williamson is silent on transcript costs.

A number of appellate courts have construed R.C. 2302.21 as allowing deposition transcript costs to be taxed, even in instances of summary judgment. The Brodess decision sets out the requirements for deposition transcripts to be taxable: (1) the transcript of a proceeding or exemplification of a record; (2) is used as evidence in such action or for any other purpose; and (3) is necessary. These requirements have been met in this case.

Amicus in Support of Vossman

Advocates for Basic Legal Equality, Inc. (“ABLE”) filed an amicus brief in support of Vossman. ABLE is a nonprofit law firm, providing free legal services to low-income individuals and groups in 32 counties in northwest and western Ohio as well as immigrant workers and children statewide.

Permitting the award of deposition costs could stifle the ability of low-income workers to seek justice in a court of law for employment discrimination. The American Rule for costs avoids such a barrier.

Vossman is correct to rely on Williamson, the prevailing decision on this issue. Nevertheless, lower courts have wrongly continued to expand the language of R.C. 2303.21. These interpretations misshape the statute and, in essence, rewrite the text. A deposition is not a “proceeding” as used in R.C. 2303.21. And there is no statute that expressly allows the taxing of depositions as costs.

Public policy requires a narrow interpretation of taxable expenses—one which permits both R.C. 2303.21 and R.C. 2319.227 to remain relevant and meaningful.

ABLE supports Vossman’s proposed proposition of law.

Vossman’s Proposed Proposition of Law

Deposition transcript costs are not costs recoverable under Civ. R. 54(D).

AirNet’s Proposed Counter Proposition of Law

Deposition costs are recoverable as costs under Rule 54(D) and Ohio R.C. 2303.21.

Student Contributor: Mark Tassone