862 N.W.2d 557
S.D.2015Background
- Estate sued Dr. Sufficool for medical malpractice arising from Karla McLaren’s surgery; at trial portions of video depositions of Drs. Sufficool and Grant were played and the Estate prevailed.
- After judgment, Estate sought $2,135.26 in disbursements for video depositions of Drs. Sufficool, Grant, and expert Fitzgibbons; Sufficool objected citing duplication with transcript costs.
- The circuit court awarded transcript costs and reporter attendance fees but denied videographer/video recording fees, concluding the video portions were convenience items not "necessary" under SDCL 15-17-37.
- The Estate appealed the denial of video-deposition disbursements; this Court reviews disbursement awards for abuse of discretion.
- The Court considered whether videographer fees are "of the same general kind" as "costs of original and copies of transcripts and reporter’s attendance fees" under SDCL 15-17-37 and whether the fees were necessarily incurred.
- Because the trial court made no specific factual findings on necessity, the Supreme Court reversed and remanded for factual findings on whether the video copying costs were necessarily incurred to gather evidence or bring the matter to trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether videographer/video recording fees for depositions are taxable disbursements under SDCL 15-17-37 | Video fees are analogous to transcript and reporter fees and therefore recoverable as disbursements | Video fees are merely convenience/duplicative where transcripts were also obtained and thus not recoverable | Videographer fees are "of the same general kind" as transcript and reporter fees and may be awarded under SDCL 15-17-37 if they were necessarily incurred; remanded for findings on necessity |
Key Cases Cited
- DeHaven v. Hall, 753 N.W.2d 429 (S.D. 2008) (interpreting SDCL 15-17-37 and requiring restrictive, "same general kind" analysis for disbursements)
- Morrison v. Reichhold Chems., Inc., 97 F.3d 460 (11th Cir. 1996) (held videotape deposition costs can be treated like other deposition costs and remanded for necessity findings)
- Cherry v. Champion Int’l Corp., 186 F.3d 442 (4th Cir. 1999) (concluded §1920 implicitly permits videotape deposition costs)
- Jamison v. Cooper, 111 F.R.D. 350 (N.D. Ga. 1986) (reasoned videotaped depositions are an acceptable, efficient alternative and their costs are deposition expenses)
- Commercial Credit Equip. Corp. v. Stamps, 920 F.2d 1361 (7th Cir. 1990) (recognized videotaped depositions as necessary and time‑effective means of preserving testimony)