Wilson v. Olathe Bank

184 F.R.D. 395, 43 Fed. R. Serv. 3d 839, 1999 U.S. Dist. LEXIS 1717, 1999 WL 77762
CourtDistrict Court, D. Kansas
DecidedFebruary 11, 1999
DocketNo. Civ. 97-2458-JTM
StatusPublished
Cited by7 cases

This text of 184 F.R.D. 395 (Wilson v. Olathe Bank) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilson v. Olathe Bank, 184 F.R.D. 395, 43 Fed. R. Serv. 3d 839, 1999 U.S. Dist. LEXIS 1717, 1999 WL 77762 (D. Kan. 1999).

Opinion

MEMORANDUM AND ORDER

RUSHFELT, United States Magistrate Judge.

The court has under consideration three Motions for Protective Order (docs. 234, 239, and 260). Pursuant to Fed.R.Civ.P. 26(c), defendants Fred Meier and Jake Esser each seek an order to prohibit plaintiffs from videotaping their depositions and defendant Community Bank seeks to prohibit plaintiffs from videotaping the deposition of its President, Francis Esely. Plaintiffs oppose the motions.

Whether to enter a protective order addresses the sound discretion of the court. Thomas v. IBM, 48 F.3d 478, 482 (10th Cir.1995). Fed.R.Civ.P. 26(c) provides that the court, upon a showing of good cause, “may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” The party seeking a protective order has the burden to show good cause for it. Sentry Ins. v. Shivers, 164 F.R.D. 255, 256 (D.Kan.1996). To establish good cause, that party must submit “a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.” Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n. 16, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981).

No movant has agreed to a videotaped deposition. Defendants object to videotaping, because there is no indication that the deponents will be unavailable for trial. They further argue that videotaping is more expensive than stenographic procedure, in that they must bear the additional expense of obtaining a copy of the video. They also contend that they may face increased taxable costs as well. They argue that it is impractical to videotape the depositions, due to the number of parties and attorneys in this case.

Plaintiffs submit that Fed.R.Civ.P. 30(b)(2) permits depositions to be videotaped. They contend, furthermore, that videotaping will facilitate the ability of the court to rule on possible claims that counsel or witnesses' have violated the specific code of conduct required by Judge Marten at depositions. They further argue that videotaping is necessary, if the court orders separate trials for some 700 plaintiffs. They contend that no defendant is required to bear any additional expense. They deny any impracticality of videotaping.

Fed.R.Civ.P. 30(b)(2) specifically permits depositions to be recorded by nonstenographie means, unless the court orders otherwise. No party suggests that the court has disallowed videotaped depositions. A review of the record, furthermore, reveals no such prohibition. Rule 30(b)(2) is intended to allow parties to “record deposition testimony by nonstenographic means without first having to obtain permission of the court or agreement from other counsel.”1 Fed. R.Civ.P. 30(b) advisory committee notes (1993 amend.) The Rule “confers on the party taking the deposition the choice of the method of recording.” Id.

The notes of the advisory committee recognize that circumstances may warrant objections to the nonstenographic recording of a deposition. Id. Fed.R.Civ.P. 26(c) provides a proper procedure to present such objections to the court. That Rule authorizes a protective order against annoyance, embarrassment, oppression, and undue burden or expense.

Movants object to videotaping their depositions, because there is no indication that they will be unavailable for trial. Fed. R.Civ.P. 30(b)(2) contains no requirement regarding the availability of the witness for [398]*398trial. The objection shows no annoyance, embarrassment, oppression, or undue burden or expense. The court overrules the objection.

Movants further argue that it is more expensive to videotape a deposition than to record it stenographically. Fed.R.Civ.P. 30(b)(2) provides that “the party taking the deposition shall bear the cost of the recording.” Thus, the only expense which might be borne by movants is the purchase of a copy of the videotape. Defendants have not shown this to rise to the level of undue expense, within the meaning of Fed.R.Civ.P. 26(c). Nothing requires movants, furthermore, to purchase a copy of the video.

Movants also argue that they may face increased taxable costs as well. “[Cjosts associated with videotaping a deposition are taxable----” Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471, 1477 (10th Cir.1997). The speculative possibility that a party may incur increased taxable costs constitutes no good cause to prohibit videotaping. To find otherwise would essentially devour the choice given to the deposing party by Fed.R.Civ.P. 30(b)(2). Parties in every action could make the same speculative argument that movants herein make. The court does not find that increased taxable costs necessarily equates with undue expense within the meaning of Fed.R.Civ.P. 26(c).

Movants suggest the court cannot ignore the discussion about videotaping contained in Griffith v. Mt. Carmel Medical Center, 157 F.R.D. 499 (D.Kan.1994). The court does not ignore Griffith. It instead finds Griffith inapplicable. That case discusses the propriety of taxing the costs for videotaping depositions. Id. at 502-03. Standards for taxing costs do not provide the criteria, however, for determining whether or not videotaping should be allowed. That a party must show a necessity for videotaping as a prerequisite for taxing it as costs has little, if any, relevance in determining whether the videotaping may occur in the first instance. Taxing costs merely determines who will pay for the procedure, not whether it is appropriate. Movants have the burden to show good cause for a protective order against videotaping.

The court further notes that Griffith apparently involved depositions taken before the effective date of the 1993 amendments to Fed.R.Civ.P. 30. The case mentions that plaintiff had sought leave to videotape. The 1993 amendment to Rule 30(b), however, removed the requirement that a party must first obtain permission of the court or agreement of opposing parties to videotape depositions. The amended rule contains the following sub-paragraph:

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Bluebook (online)
184 F.R.D. 395, 43 Fed. R. Serv. 3d 839, 1999 U.S. Dist. LEXIS 1717, 1999 WL 77762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-olathe-bank-ksd-1999.