“We conclude that a discovery deposition conducted outside the presence of a judge is not a proceeding within the meaning of R.C. 2303.21 and thus the cost of procuring the transcript of such a deposition may not be recovered as a cost under Civ.R. 54(D).”
Justice DeWine, Majority Opinion
On March 13, 2020, the Supreme Court of Ohio handed down a merit decision in Vossman v. AirNet Sys., Inc., Slip Opinion No. 2020-Ohio-872. In a 6-1 opinion authored by Justice DeWine, in which Chief Justice O’Connor concurred in judgment only and Justice Fischer dissented, the Court held that the cost of deposition transcripts used to support a motion for summary judgment could not be taxed as costs under Civ.R. 54(D). The case was argued April 23, 2019.
Case Background
Dan Vossman sued his former employers AirNet Systems, Inc., Quinn Harmon and Thomas Schaner (collectively, “AirNet”) for age discrimination. During discovery, the parties took five depositions: four of AirNet employees, plus Vossman’s. AirNet filed for summary judgment, and in support cited and filed parts of the employee deposition transcripts. The trial court granted AirNet’s summary judgment motion. Pursuant to R.C. 2303.21, AirNet moved to recover the deposition transcripts as costs. The trial court granted the motion and awarded AirNet $3641.70 in costs. Vossman appealed. The Tenth District Court of Appeals affirmed the judgment of the trial court.
Read the oral argument preview here and an analysis of the argument here.
Vossman’s Proposition of Law Accepted for Review
Deposition transcript costs are not costs recoverable under Civ. R. 54(D).
Does the Court adopt Vossman’s Proposition of Law?
Not as broadly as written. The Court found the deposition transcript costs in support of a summary judgment motion were not recoverable in this case.
Key Statutes and Precedent
Civ.R. 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.”)
Job v. Harlan, 13 Ohio St. 485 (1862) (Referring to “transcript of the proceedings” as those before a court or other adjudicative body.)
State ex rel. Michaels v. Morse, 165 Ohio St. 599 (1956) (“The subject of costs is one entirely of statutory allowance and control.”)
Benda v. Fana, 10 Ohio St.2d 259 (1967) (Costs may be defined as “the statutory fees to which officers, witnesses, jurors and others are entitled for their services in an action or prosecution and which the statutes authorize to be taxed and included in the judgment or sentence.”)
Williamson v. Ameritech Corp., 81 Ohio St.3d 342 (1998) (There is no general basis for a court to award deposition expenses to a prevailing party.)
New Prime Inc. v. Oliveira, 139 S.Ct. 532 (2019) (A fundamental canon of statutory construction is that words should be interpreted in their ordinary meaning at the time of enactment, and to do otherwise allows for judges to legislate from the bench.)
Merit Decision
First, a warning for blog readers who may not be lawyers—let me quote from Justice DeWine’s opinion:
“The subject to which R.C. 2303.21 pertains—when the expense of procuring transcripts may be taxed as a cost—is quintessentially a lawyerly concern.”
Analysis
What Are Costs?
The answer comes from the first paragraph of the syllabus of Benda v. Fana:
“The statutory fees to which officers, witnesses, jurors and others are entitled for their services in an action or prosecution and which the statutes authorize to be taxed and included in the judgment or sentence.”
Taxing of Costs Requires A Statutory Basis
Any award of costs must be tied to some statutory provision. And these are limited.
Argument of the Parties
AirNet relies on R.C. 2303.21 as the basis for awarding it the cost of depositions in support of its summary judgment motion, arguing that a deposition transcript is a transcript of a proceeding and was necessary to its summary judgment motion, thus fitting the statutory requirements.
Vossman argues a deposition is not a proceeding within the meaning of R.C. 2303.21, and that the precedent in Williamson forecloses any award for the cost of the deposition transcripts.
Although the Court ultimately finds in favor of Vossman, it rejects his reliance on Williamson. Williamson dealt with R.C. 2319.27, not R.C. 2303.21. R.C. 2319.27 deals with fees and expenses charged by a court reporter for taking a deposition, not taxing and including deposition costs in a judgment. So, the holding in Williamson that “R.C. 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)” doesn’t apply here.
Correct Interpretation of R.C. 2303.21: A Deposition is Not a Proceeding
First some basics. “Proceeding” is not a defined term, so it gets its plain and ordinary meaning. No word is viewed in isolation; the text is considered as a whole.
Next comes a history lesson. The statute in question was first enacted in 1859, and with some minor changes in wording, has pretty much remained the same.
Now for some originalism.
Meaning of “Proceeding” at the Time the Statute was Enacted
Contemporaneous law dictionaries support the view that in the legal context, a “proceeding” primarily was used to describe activity before a judicial officer. If you like this kind of stuff, Justice DeWine really drills down on it. Next, moving to statutory context, this “also supports the conclusion that a transcript of a proceeding means a transcript of matters presented to a court or other adjudicative body.”
In R.C. 2303.21, the word “proceeding” is included with “judgment” and “exemplification of a record.” Words that are listed together should be understood in the same general sense. At the time of the 1853 Ohio Code of Civil Procedure, roughly the same time R.C. 2303.21 was first passed, both a transcript of a judgment and an exemplification of a record memorialized what happened in court. So, the reference in R.C. 2303.21 to a transcript of a proceeding should be understood the same way. In short, a transcript of a proceeding documents what happened in court.
There’s more of this history, painstakingly detailed by Justice DeWine in the majority opinion, including a reminder that back in the day in 1859 when R.C. 2303.21 was first enacted, there was nothing like today’s modern discovery. Use of depositions was limited to gathering evidence to be used in place of live trial testimony. The deposition could be read into evidence at trial and would therefore become part of the proceedings before the court.
“In short, available historical indicators suggest that as understood in 1859, when the disputed provision became part of the revised code, the legal effect of the provision was to allow the recovery of costs related to documenting the acts that transpired in a court or other adjudicative body. The statute did not allow for recovery of costs associated with the general procuring of evidence,” wrote DeWine.
Bottom Line
The word “proceeding” in R.C. 2303.21 refers to matters in a court or other adjudicative body. So, that statute does not provide the requisite authority to tax as costs the deposition transcripts in support of AirNet’s motion for summary judgment. The judgment of the court of appeals is reversed.
Justice Fischer’s Dissent
Justice Fischer thinks a deposition does fall within the meaning of “proceeding” as that term is used in R.C. 2303.21. He disagrees with the majority’s understanding of the history involved.
Under the former Code of Civil Procedure effective in 1853, witness testimony was permitted to be taken by deposition by a judicial officer or “any person empowered by a special commission.” Depositions were part of the proceedings, and if the deposition was used, the cost was recoverable. While the use of depositions has been expanded and the procedures have been relaxed, the same is still true today. “After all, a deposition is just as much a part of the proceeding today as it was in the 1800s,” wrote Fischer, who would affirm the judgment of the court of appeals.
Concluding Observations
This was one I was really glad to be wrong about—I thought AirNet would win but didn’t think it should have.
The defense trying to persuade the trial judge to load depositions costs onto a losing plaintiff was a pet peeve of mine when I was practicing, as a plaintiff’s personal injury lawyer. Apparently, it was also a peeve of my late husband’s (Judge Gilbert Bettman) because in Vossman’s brief was this passage from one of his opinions in 1998 when he was on the Hamilton County Court of Common Pleas:
“Why some courts seem to want to load the winners’ litigation expenses onto the loser is something of a mystery. It may be simply the court’s irritation at the loser for not settling the case. In any event, it is contrary to what we have always considered the American rule, that each side pays its own expenses. Any other rule will inevitably have the effect of closing the courts to those whose funds are limited, in violation of Section 16, Article 1 of the Constitution of Ohio. Maynard v. Owens-Illinois, Inc. (1993 C.P. Hamilton C0,), 63 Ohio Misc. 2d 25 at 29, 619 N.E.2d 1 12.
Justice Donnelly articulated a similar view during oral argument in this case when he noted that allowing any deposition to be taxed as a cost could actually penalize those who can’t afford access to courts.
What was interesting about the majority opinion in this case was that it essentially took a historical approach to the statute which wasn’t really the emphasis of either party at argument, although Vossman did argue that under the dictionaries at the time, a proceeding was primarily an activity before a judicial officer. Justice DeWine really did an impressive deep dive on this in a very well-written opinion.