Deposition Fee Case (California, 2008)
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NCRA amicus brief (pdf)
A California appeals court in May 2008 ruled that lower state courts have the ability to intervene in instances where the non-notifying party claims it is being charged excessively for court reporting services. (State of California, Second Appellate District, Division Three, B193502)
The reporting firm, Coast Court Reporters, filed for a rehearing May 15.
NCRA filed an amicus curiae brief in the California Court of Appeal in Serrano v. Stefan Merli Plastering, maintaining that trial courts in California and elsewhere do not have the authority to determine prices that court reporters charge for deposition services. The brief explained that unless prices for deposition transcripts, copies, and related services are split between the parties, reporters would need to increase the price to the party noticing the deposition in order to earn fair compensation. The California Court Reporters Association and the Deposition Reporters Association of California also filed briefs before the Court of Appeal, providing similar arguments.
In reversing the lower court’s ruling, the court determined that California’s code of civil procedure and “the court’s inherent authority to control its ministerial officers and other persons connected with a judicial proceeding” give trial courts authority “to require a deposition reporter to provide a copy of a deposition transcript to a non-noticing party in a pending action for a reasonable fee which, in the absence of an agreement between the interested parties, may be set by the court upon a proper evidentiary showing.”
NCRA’s legal counsel, Jeff Altman of McKenna/Long in Washington, D.C., which filed the amicus brief on behalf of NCRA, provides additional background:
The trial court determined that charging an expedite fee to the non-noticing party was unconscionable since all the extra work was done for the noticing
party and all that was required was to make an extra copy. In our amicus
brief, we pointed out that the pricing model was designed to share the
expedite costs between the parties and that this was a reasonable practice or the noticing party would be charged a much higher expedite fee. Among other things, the court reporting firm argued and the lower court agreed that the lower court did not have the authority to intervene even to protect an aggrieved party from having to pay an unconscionable fee. It is this ruling that led to the appeal.
The appeals court ruled that the courts are not powerless and that the courts have the inherent authority to deal with an unconscionable charge. So now we have a published opinion and bad precedent arising out of expedite fees charged to the non-noticing party. What's more, the appeals court said that the trial court on remand could look at other incidental fees that were challenged, such as charging for index pages.
The key discussion in the case starts at page 22 of the ruling. It is here that the
appeals court explained and ruled that a trial court has the authority to require a deposition reporter to provide a copy of a transcript to a non-noticing party for a reasonable fee and to determine what is reasonable in the event of a dispute. Moreover, within the ruling there is language about possible over reaching by court reporters and the obligation of the courts to intervene if necessary to protect litigants. Among other things, there is language indicating that there may be economic incentives for reporters to provide discounts to the noticing party to get business and then shift those costs to the non-noticing party.
The appeals court did note that its decision was limited to cases where there is no contractual agreement between the deposition reporter and the non-noticing party and only where the non-noticing party believes that the fee is unreasonable. This suggests that it would not have been a problem if the fees were discussed and agreed to by the parties at the time of the deposition.
Individual NCRA members and firm owners can protect themselves by getting a signed acknowledgement from all parties at every deposition that they are aware of the charges and conditions of service that will apply.
Updated May 19, 2008