Perry v. Mohawk Rubber Co.

63 F.R.D. 603, 19 Fed. R. Serv. 2d 555, 1974 U.S. Dist. LEXIS 7135
CourtDistrict Court, D. South Carolina
DecidedAugust 15, 1974
DocketCiv. A. No. 74-144
StatusPublished
Cited by13 cases

This text of 63 F.R.D. 603 (Perry v. Mohawk Rubber Co.) is published on Counsel Stack Legal Research, covering District Court, D. South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perry v. Mohawk Rubber Co., 63 F.R.D. 603, 19 Fed. R. Serv. 2d 555, 1974 U.S. Dist. LEXIS 7135 (D.S.C. 1974).

Opinion

ORDER

ON PLAINTIFF’S MOTION FOR LEAVE TO HAVE. PRETRIAL DEPOSITIONS RECORDED BY VIDEOTAPE IN ADDITION TO STENOGRAPHIC TRANSCRIPTION, PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 30(b)(4).

HEMPHILL, District Judge.

Plaintiff desires to take the oral depositions of witnesses, including agents, servants, and employees of the three defendant corporations, and to have the said depositions recorded by videotape as well as by stenographic transcription, under the terms and conditions set forth in its motion, as permitted by Federal Rule of Civil Procedure 30(b)(4) 1 upon an order of the court. Defendants vigorously oppose the motion. The question presented appears to be one of first impression in South Carolina.

STATEMENT OF FACTS

On October 26, 1971, defendant Cooper, a creditor of plaintiff, obtained (ex parte) the appointment of a South Carolina state court receivership of plaintiff’s business. Shortly thereafter, defendants Mohawk and Robertshaw, additional creditors of plaintiff, petitioned this court to place plaintiff in involuntary bankruptcy for failure to pay his allegedly just debts. Subsequently, the bankruptcy was dismissed by order of this court and, thereafter, the state court terminated the receivership.

On May 1, 1974, plaintiff filed its amended complaint against all three defendants, foreign corporations, basing jurisdiction on diversity of citizenship and alleging a tortious conspiracy to interfere intentionally with plaintiff’s business.

STATEMENT OF APPLICABLE LAW

Due to the relatively recent date of the rule amendment, there is a paucity of ease authority on the specific subject of the use of videotape in the taking of pretrial deposition testimony for presumable subsequent use upon trial.2

Rule 30(b)(4) does not authorize the use of videotape or any other non-stenographic recording technique by any party as a matter of right. A court may by order give such authorization, but the decision to do so rests entirely in the discretion of the presiding judge. See Carter v. Joseph Bancroft & Sons Co., 360 F.Supp. 1103, 1111 (E.D.Pa.1973), prohibiting use at trial of a deposition [605]*605tape recording not made pursuant to a court order.

After ordaining discretion in the disposition of motions for non-stenographic recording, Rule 30(b)(4) itself unfortunately fails to specify the criteria relevant to the exercise of such discretion. While the rule is ambiguous, the accompanying Notes of the Advisory Committee on Rules are quite clear in stating the purpose to be furthered by the application of the rule:

In order to facilitate less expensive procedures, provision is made for the recording of testimony by other than stenographic means—e. g., by mechanical, electronic, or photographic means. Because these methods give rise to problems of accuracy and trustworthiness, the party taking the deposition is required to apply for a court order. The order is to specify how the testimony is to be recorded, preserved, and filed, and it may contain whatever additional safeguards the court deems necessary.

As the Advisory Committee Notes recognize, problems of accuracy and trustworthiness are inherent in the use of nonstenographic recording techniques. Thus, the authorization of such techniques is a concession to the demand for less costly alternatives to stenographic transcription. Rule 30(b)(4) tacitly acknowledges that all parties do not stand in financial equality, and it proceeds accordingly to allow flexibility when the cost of stenographic recording would unjustly curtail discovery. But Rule 30(b)(4) does not compel any court to cater to the whims of the parties before it.

Since Rule 30(b)(4) became effective July 1, 1970, only one reported federal trial court decision has allowed the use of videotape to record a deposition. In Carson v. Burlington Northern, Inc., 52 F.R.D. 492 (D.Neb.1971), the court permitted a single deposition to be videotaped. The case involved a plaintiff whose hand had been injured in a steel press and the court allowed videotape only “for the purpose of showing the manner in which plaintiff approached and operated the machine immediately prior to and at the time of the alleged accident.” 52 F.R.D. at 493. Since the steel press obviously could not have been brought into the courtroom, the court, by allowing the videotaping, made available demonstrative evidence which could never have been presented in a stenographic transcript. Even so, the court directed a specific procedure to insure that the plaintiff’s fear that the deposition would be “staged” for undue advantage to the defendant were not realized. The court in Carson, supra, did note in passing the unsupported view found in Wright & Miller, 8 Federal Practice & Procedure § 2115, at 426 (1970) favoring use of audio-visual devices. It is apparent that the necessity for otherwise unobtainable demonstrative evidence was the rationale for allowance of videotape in Carson, supra.

With the exception of Carson, supra, every other reported decision involving Rule 30(b)(4) has involved only audiotape recordings. The use of a tape recorder presents few of the problems which would arise with the use of videotape. In the case of Kallen v. Nexus Corp., 54 F.R.D. 610 (N.D.Ill.1972), the court allowed the use of an audiotape recorder in addition to stenographic recordation in an antitrust class action on the grounds of economy, but only after providing elaborate procedural precautions. Marlboro Products Corp. v. North American Philips Corp., 55 F.R.D. 487 (S.D.N.Y.1972) involved a motion for an order allowing plaintiff to record by audiotape, in addition to the usual stenographic method. The court allowed the use of the device but provided that counsel should submit an order employing appropriate safeguards acceptable to the court and counsel. With the use of any means other than normal stenographic [606]*606methods, the courts in all instances have treated the request with care and circumspection and have allowed the use of other recording devices only where the exigencies of the case required it or where a substantial cost saving to a litigant could be had. The court in Jarosiewicz v. Conlisk, Superintendent of Police of City of Chicago, 60 F.R.D. 121 (N.D.Ill.1973) had before it a motion to allow the use of a “tape recorder” or “other means”. The court recognized the requested procedure to be experimental in nature, and refused to order the use of the alternative means of recording the deposition until “an appropriate method and procedure can be agreed upon by the parties with the assistance of this Court”. It should be noted that in Jarosiewicz, supra, plaintiff stated he was without sufficient funds or means to bear the cost of stenographic transcripts “in pursuit of meaningful, effective and adequate preparation of his case”. 60 F.R.D. at 125.

The cases of Rubino v. G. D. Searle & Co., 73 Misc.2d 447, 340 N.Y.S.2d 574 (1973) and State ex rel. Johnson v. Circuit Court of Milwaukee County, 61 Wis.2d 1, 212 N.W.2d 1 (1972) are both state court decisions involving use of video tape transcription of the testimony of medical witnesses. In Rubino,

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63 F.R.D. 603, 19 Fed. R. Serv. 2d 555, 1974 U.S. Dist. LEXIS 7135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perry-v-mohawk-rubber-co-scd-1974.