Tilton v. Capital Cities/ABC, Inc.

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUN 18 1997
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

ROBERT G. TILTON,

Plaintiff - Appellant,

v. No. 96-5041

CAPITAL CITIES/ABC, INC., a New
York corporation; AMERICAN
BROADCASTING COMPANIES,
INC., a Delaware corporation; ABC
NEWS, INC., a Delaware
corporation; DIANE SAWYER;
ROBBIE GORDON; KELLEY
SUTHERLAND,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D. Ct. No. 92-C-1032-BU)

Submitted on the briefs: *

J.C. Joyce and Sheila M. Bradley, Joyce and Pollard, Tulsa, Oklahoma, on the
briefs for Appellant.

*
After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
Floyd Abrams, Susan Buckley, and David G. Januszewski, Cahill, Gordon &
Reindel, New York City, New York, Clyde A. Muchmore and Mark S. Grossman,
Crowe & Dunlevy, Oklahoma City, Oklahoma, on the brief for Appellees.

Before TACHA, BRISCOE, and MURPHY, Circuit Judges.

TACHA, Circuit Judge.

Robert G. Tilton appeals the order of the district court taxing him

$135,830.34 in costs pursuant to 28 U.S.C. § 1920 and Federal Rule of Civil

Procedure 54(d). Tilton argues that the district court erred in taxing: (1) the

transcription costs of forty-eight depositions, (2) the travel and subsistence

expenses of ten deponents, (3) the copying costs of a number of deposition

exhibits, trial exhibits, imaged documents, and third-party discovery documents,

(4) the preparation and transcription costs of seven videotaped depositions, and

(5) the translation costs for exhibits used as part of a deposition. We have

jurisdiction pursuant to 28 U.S.C. § 1291. For the reasons set forth below, we

affirm. 1

1
Tilton moves to strike certain exhibits from the defendants’ supplemental
appendix. Because none of the materials that Tilton finds objectionable were necessary to
our disposition of the case, we deny Tilton’s motion. See Osborne v. Babbitt, 61 F.3d
810, 814 (10th Cir. 1995).

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 BACKGROUND

In 1992, Tilton sued Capital Cities/ABC, Inc., American Broadcasting

Companies, Inc., ABC News, Inc., and several employees of American

Broadcasting Companies, Inc., for libel and false light invasion of privacy arising

out of the broadcast of two television programs in 1991 and 1992. The district

court granted summary judgment in favor of all the defendants. We affirmed the

orders of the district court granting summary judgment on August 27, 1996.

Tilton v. Capital Cities/ABC, Inc., 95 F.3d 32 (10th Cir. 1996), cert. denied, 117

S. Ct. 947 (1997) .

On July 3, 1995, the defendants filed a bill of costs in the amount of

$144,081.47 with the clerk of the district court. Tilton objected to the

defendants’ bill, arguing that almost all of the items were unnecessary or

unallowable. On September 14, 1995, the clerk taxed costs against Tilton in the

amount of $138,700.24. Tilton sought review of the award with the district court,

again arguing that almost all of the items were unnecessary or unallowable. On

review, the district court reduced the costs taxed to $135,830.34, concluding that

the defendants’ rush charges were not recoverable. Tilton now appeals the

district court’s order.

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 DISCUSSION

I. T RANSCRIPTION C OSTS FOR D EPOSITIONS

Section 1920(2) provides for taxation of “[f]ees of the court reporter for all

or any part of the stenographic transcript necessarily obtained for use in the case.”

28 U.S.C. § 1920(2). In this case, the parties deposed sixty-nine individuals

(fifty-nine by the defendants and ten by the plaintiff) for which the defendants

sought transcription costs. The clerk taxed Tilton $48,614.44 for the transcription

costs associated with sixty-two depositions but denied the transcription costs

associated with seven depositions. In seeking review by the district court, Tilton

argued that most of these depositions were unnecessary, irrelevant, and

cumulative. On review, the district court upheld the taxation of costs. The court

stated:
Upon review, the Court is satisfied that the depositions which
were cited in or submitted with the parties’ briefs in regard to the
summary judgment motions were necessarily obtained for use in this
case. Although the Court did not expressly cite to each and every
deposition in its written order, the Court considered all of the
depositions submitted in determining whether summary judgment in
favor of Defendants was appropriate. . . .
....
As to the remaining depositions which were not cited in or
submitted with the parties’ briefs, the Court concludes that the
depositions were necessarily obtained for use in the case. The Court
finds that these depositions were not taken simply for investigative
purposes or for the convenience of counsel as argued by Plaintiff.
Moreover, the Court finds that these depositions were relevant to the
issues in the case. The court therefore finds that the costs for these
depositions were properly taxed.

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Tilton v. Capital Cities/ABC, Inc., No. 92-C-1032-BU, slip op. at 2-3 (N.D. Okla.

Jan. 5, 1996) (emphasis added).

On appeal, Tilton argues that the district court abused its discretion in

taxing the transcription costs associated with forty-eight of the sixty-two

depositions. Tilton argues that the depositions were irrelevant and cumulative

and thus asserts that the depositions were not “necessarily obtained for use in the

case” as required by section 1920(2).

We will not disturb the district court's determination regarding what

deposition costs are reasonably necessary to the litigation absent an abuse of

discretion. Gibson v. Greater Park City Co., 818 F.2d 722, 725 (10th Cir. 1987).

A district court does not abuse its discretion in taxing transcription costs

associated with depositions that were “actually utilized by the court in

considering [the defendant’s] motion for summary judgment.” Merrick v.

Northern Natural Gas Co., 911 F.2d 426, 434-35 (10th Cir. 1990); see also

Gibson, 818 F.2d at 725 (finding no abuse of discretion in allowing a defendant to

recover the costs of several depositions when the court relied on the depositions

in deciding the case).

Of the forty-eight depositions at issue on appeal, the parties submitted all

but four in support of their summary judgment briefs. The district court expressly

stated that he relied on “all of the depositions submitted in determining whether

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summary judgment was appropriate.” Under these circumstances, we hold that

the district court did not abuse its discretion in taxing the transcription costs

associated with the depositions submitted by the parties in support of their

summary judgment motions. Although we would have preferred a more detailed

explanation of the district court's decision to allow the deposition costs, the

record contains no evidence that the district court abused its discretion in taxing

the cost of deposition copies to plaintiff.

With respect to the four depositions that the parties did not submit with

their summary judgment briefs (Ann Boatman, James Deaton, Barbara Miller--

Volume 1, and Harold Watts), we do not consider whether the district court

abused its discretion in taxing the transcription costs because the plaintiff has not

included those depositions in the appellant’s appendix. In this circuit and under

the Federal Rules, the appellant bears the responsibility of providing this court

with “an appendix sufficient for consideration and determination of the issues on

appeal.” 10th Cir. R. 30.1.1; see also Fed. R. App. P. 30; Shearson Lehman

Bros., Inc. v. M & L Inv., 10 F.3d 1510, 1515 (10th Cir. 1993). Thus, when

challenging the taxation of costs associated with a particular deposition because it

was not necessarily obtained, the appellant’s appendix must include the

challenged deposition. Tilton has failed to provide us with the depositions of

Boatman, Deaton, Miller--Volume 1, and Watts. Because the appellant’s

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appendix is insufficient to permit assessment of this claim of error, we must

affirm. See Deines v. Vermeer Mfg. Co., 969 F.2d 977, 979-80 (10th Cir. 1992).

II. W ITNESS S UBSISTENCE E XPENSES AND T RAVEL C OSTS

Section 1920(3) provides for taxation of “[f]ees and disbursements for . . .

witnesses.” 28 U.S.C. § 1920(3). In this case, the defendants sought

reimbursement for the travel and subsistence expenses of twelve deponents. The

clerk taxed the defendants $5,395.40 for the travel and subsistence expenses of

ten deponents. Before the district court, Tilton objected to the taxation of witness

travel and subsistence expenses on two grounds. First, Tilton argued that the

depositions were not necessary. Second, Tilton argued that travel mileage costs

in excess of 100 miles are not recoverable. On review, the district court

concluded that the clerk’s taxation of the witnesses’ travel and subsistence

expenses was appropriate.

On appeal, Tilton objects to the award on three grounds. First, Tilton

contends that because he and the defendants each agreed to pay one-half of the

travel costs of deponents who resided more than 100 miles from Tulsa, the

defendants cannot recover the costs as a prevailing party. Second, Tilton argues

that the district court should have limited the recovery of the deponent’s

subsistence expenses to the government’s per diem amount under 28 U.S.C. §

1821(d)(2). Finally, Tilton reiterates his argument that travel mileage costs in

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excess of 100 miles are not taxable.

We do not address Tilton’s first two arguments because he raises them for

the first time on appeal. See Sac & Fox Nation v. Hanson, 47 F.3d 1061, 1063

(10th Cir.) (holding that an appellate court will not consider an argument for the

first time on appeal “except for the most manifest error”), cert. denied, 116 S. Ct.

57 (1995). We therefore proceed to address Tilton’s argument that the district

court abused its discretion in taxing the travel mileage costs in excess of 100

miles. Tilton argues that because Federal Rule of Civil Procedure 45(e) does not

permit the service of subpoenas outside the judicial district more than 100 miles

from the place of trial, a party cannot recover transportation expenses in excess of

the 100-mile limit absent special circumstances. We rejected this argument in

Fleet Inv. Co., Inc. v. Rogers, 620 F.2d 792 (10th Cir. 1980):

[A]ppellant challenges the district court's award of travel mileage
costs of four witnesses beyond the 100-mile limit specified in Rule
45(e) of the Federal Rules of Civil Procedure. A district court has
discretion to approve travel costs in excess of 100 miles from the
place at which the trial is held, Farmer v. Arabian American Oil Co.,
379 U.S. 227, 231-32 (1964), and such costs need not be approved in
advance. But since such a request appeals to the court's discretion,
parties who obtain a witness from outside the 100-mile limit without
advance approval do so at their peril.

Id. at 794. Thus, as in Fleet, we affirm the district court’s taxation of witness

travel expenses beyond the 100-mile limit imposed by Rule 45(e).

III. E XEMPLIFICATION AND C OPYING C OSTS

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 Section 1920(4) provides for the taxation of “[f]ees for exemplification and

copies of papers necessarily obtained for use in the case.” 28 U.S.C. § 1920(4).

In this case, the clerk taxed Tilton $82,790.40 for exemplification and copies,

which included: (1) $568.20 for summary judgment exhibits, (2) $692.40 for

deposition exhibits, (3) $16,634.55 for trial exhibits, (4) $48,904.74 for imaged

documents, and (5) $15,990.51 for third-party documents. Before the district

court, Tilton objected to the taxation of costs for all of the above items except the

deposition exhibits. On review, the district court stated:

[T]he Court finds that Defendants are entitled to recover all of the
costs of exemplification and copies taxed by the Court Clerk except
for the rush charges in the amount of $2879.90. The court concludes
that the costs of copying trial exhibits and Rule 45 documents as well
as the costs of imaging documents in the Internal Data Management
warehouse were necessarily incurred by Defendants.
As to the costs for trial exhibits, the Court finds that those
costs were necessarily incurred by Defendants as the Court had
ordered Defendants to provide a set of trial exhibits to Plaintiff and
to the Court. Although Plaintiff states that the Court did not advise
Defendants in advance that Plaintiff would pay for those exhibits
Plaintiff was clearly on notice under section 1920 that the prevailing
party would be entitled to recover costs, including costs for trial
exhibits.

Tilton, slip op. at 3-4.

On appeal, Tilton argues that the district court abused its discretion in

taxing the exemplification and copying costs of the deposition exhibits, trial

exhibits, imaged documents, and third-party documents. He does not appeal the

taxation of costs for the summary judgment exhibits.

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 A. Deposition Exhibits

On appeal, Tilton argues that the deposition exhibits were not “necessarily

obtained.” He appeals the taxation of costs for the deposition exhibits for the

same reasons that he appeals the costs for the depositions at which the exhibits

were produced. We do not address this argument, however, because Tilton failed

to raise it before the district court. See Sac & Fox Nation, 47 F.3d at 1063.

B. Trial Exhibits

With respect to the costs of the trial exhibits, Tilton argues that a prevailing

party may not recover costs for the preparation of trial exhibits absent advance

court approval. In Euler v. Waller, 295 F.2d 765 (10th Cir. 1961), we addressed

this same argument. In Euler, the district court awarded the plaintiff costs for the

preparation of a map that the plaintiff had used at trial. Reversing the award, we

reasoned:

No provision is made by the statute for the taxation of any such item
as costs. The cases are not in harmony on the question of whether
costs may be allowed for such items as models, wall charts, maps,
and photographs. In our opinion when costs are sought for items not
listed in § 1920 the procedure to be followed is an application to the
court in advance of trial for an approving order. This allows the
exercise of judicial discretion and at the same time conforms with the
holding in Ex parte Peterson, 253 U.S. 300, 315, 40 S. Ct. 543, 64 L.
Ed. 919, which recognized the inclusion in taxable costs of
“expenditures incident to the litigation which were ordered by the
court because deemed essential to a proper consideration of the case
by the court or the jury.” In the case now before us there was no
advance approval. The cost of the map is disallowed.

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Id. at 767; see also Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319, 335

(5th Cir.) (“Absent pretrial approval of the exhibits . . ., a party may not later

request taxation of the production costs to its opponent.”), cert. denied, 116 S. Ct.

173 (1995).

Three years after our decision in Euler, the Supreme Court decided Farmer

v. Arabian Am. Oil Co., 379 U.S. 227 (1964). In Farmer, the Court concluded

that “the discretion given district judges to tax costs should be sparingly exercised

with reference to expenses not specifically allowed by statute.” Id. at 235. We

think this language is inconsistent with Euler to the extent that Euler prohibits a

district court from taxing costs for trial exhibits absent pre-trial approval. In

accordance with Farmer, we reject a bright-line rule and instead examine whether

the circumstances in a particular case justify an award of costs for trial exhibits.

See also U.S. Indus., Inc. v. Touche Ross & Co., 854 F.2d 1223, 1248 (10th Cir.

1988) (affirming the district court’s refusal to tax the cost of a daily transcript but

noting that “if the issues in th[e] case were so complex as to justify overlooking

the lack of pretrial approval, a court could have used its discretion to award the

cost”); Cleverock Energy Corp. v. Trepel, 609 F.2d 1358, 1363 (10th Cir. 1979)

(“The awarding of costs for preparation of exhibits is committed to the discretion

of the trial court.”); Mikel v. Kerr, 499 F.2d 1178, 1182-83 (10th Cir. 1974)

(affirming the taxation of the costs associated with preparing a trial exhibit

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without discussing whether the district court approved the exhibit prior to trial).

The district court concluded that the circumstances in this case justified the

taxation of the trial exhibit costs. We find nothing in the record to suggest that

the district court abused its discretion in taxing these costs.

C. Imaged Documents and Third-Party Documents

With respect to the costs of imaging documents stored at Internal Data

Management and for the costs of copying third-party documents, Tilton argues

that these documents were irrelevant to the issues in the case. Tilton also asserts

that much of this information was cumulative because the defendants had the

information in their possession prior to the broadcasts. Thus, Tilton claims that

none of these documents could have been “necessarily obtained” as required by

section 1920(4). We will not disturb the district court's determination regarding

what costs are reasonably necessary to the litigation absent an abuse of discretion.

Gibson v. Greater Park City Co., 818 F.2d 722, 725 (10th Cir. 1987). After

reviewing the record, we conclude that the district court did not abuse its

discretion in taxing these costs.

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IV. C OSTS FOR V IDEOTAPE AND S TENOGRAPHIC T RANSCRIPT

Section 1920(2) provides for the taxation of “[f]ees of the court reporter for

all or any part of the stenographic transcript necessarily obtained for use in the

case.” 28 U.S.C. § 1920(2). In this case, the clerk taxed the costs of both

videotaping and transcribing seven depositions. Before the district court, Tilton

argued that section 1920(2) excludes video depositions as taxable costs because

the statute provides that a court may only tax costs of a “stenographic transcript.”

On review, the district court concluded:

In addition to the stenographic transcript charges for the depositions
cited to or submitted with the parties’ briefs in regard to the summary
judgment motions, Plaintiff challenges costs taxed for the taking of
the videotape depositions. . . . Plaintiff contends that he should not
be required to pay costs associated with both stenographic transcripts
and videotapes of the depositions. Having reviewed the applicable
authorities, the Court finds that the reasoning of Meredith v.
Schreiner Transport, Inc., 814 F. Supp. 1004 (D. Kan. 1993), is
sound. The Court therefore concludes that the expenses of these
videotape depositions are recoverable.

Tilton, slip op. at 2-3.

We agree with the district court that the costs associated with videotaping a

deposition are taxable under section 1920(2). In so holding, we recognize that

section 1920(2) does not explicitly provide for the taxation of costs associated

with video depositions. Federal Rule of Civil Procedure 30(b)(2)-(3), however,

authorizes videotape depositions as an alternative to traditional stenographic

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depositions. 2 Interpreting section 1920(2) in conjunction with Rule 30(b)(2)-(3),

we hold section 1920(2) implicitly permits taxation of the costs of video

depositions. 3

2
Federal Rule of Civil Procedure 30(b)(2)-(3) provides:
(2) The party taking the deposition shall state in the notice the method by
which the testimony shall be recorded. Unless the court orders otherwise, it
may be recorded by sound, sound-and-visual, or stenographic means, and
the party taking the deposition shall bear the cost of the recording. Any
party may arrange for a transcription to be made from the recording of a
deposition taken by nonstenographic means.
(3) With prior notice to the deponent and other parties, any party may
designate another method to record the deponent's testimony in addition to
the method specified by the person taking the deposition. The additional
record or transcript shall be made at that party's expense unless the court
otherwise orders.
3
Most courts have agreed that a district court may tax the costs of a video
deposition under section 1920(2). See Morrison v. Reichhold Chems. Inc., 97 F.3d 460,
464-65 (11th Cir. 1996) (“[W]e hold that, when a party notices a deposition to be
recorded by nonstenographic means, or by both stenographic and nonstenographic means,
and no objection is raised at that time by the other party to the method of recordation
pursuant to Federal Rule of Civil Procedure 26(c), it is appropriate under § 1920 to award
the cost of conducting the deposition in the manner noticed.”); Barber v. Ruth, 7 F.3d
636, 645 (7th Cir. 1993) (“[A] district court may tax under Rule 54(d) the costs associated
with the videotaping of a deposition.”); Commercial Credit Equip. Corp. v. Stamps, 920
F.2d 1361, 1368 (7th Cir. 1990) (“A videotaped deposition qualifies as ‘other than
stenographic means,’ and as such is taxable as a substitute for a stenographic transcript,
even though it is more expensive.”); Davis v. Puritan-Bennett Corp., 923 F. Supp. 179,
180 (D. Kan. 1996) (“[T]his Court has held that deposition videotaping expenses are
recoverable as costs.”); Meredith v. Schreiner Transp., Inc., 814 F. Supp. 1004, 1006 (D.
Kan. 1993) (noting that “numerous courts have held that costs associated with video
deposition are . . . recoverable”). But see Echostar Satellite Corp. v. Advanced
Communications Corp., 902 F. Supp. 213, 215 (D. Colo. 1995) (“I do not see how a
videotape can be a ‘stenographic transcript.’”).

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 Moreover, we recognize that permitting recovery of the costs of video

depositions comports with public policy. We see no reason to penalize a

prevailing party because the party has chosen to preserve and present testimony

through a videotape instead of a printed transcript. “[V]ideotaped depositions are

a necessary and time effective method of preserving witnesses' time and

allocating precious court and judicial time in this age of advanced court

technology and over-crowded court calendars. [Thus, w]e must not seem reluctant

to adopt any and all time-saving methods that serve to improve our system of

justice." Commercial Credit Equip. Corp. v. Stamps, 920 F.2d 1361, 1368 (7th

Cir. 1990).

Our conclusion that a district court may tax the costs of videotaping

depositions under section 1920(2) does not end our inquiry. We must determine

exactly what costs associated with a videotaped deposition are taxable--that is, we

must decide whether the defendants may recover the costs of both videotaping and

transcribing the depositions.

In this case, the district court taxed the costs of both the preparation and

transcription of seven videotaped depositions. The court relied on the reasoning

of Meredith v. Schriener Transport, 814 F. Supp. 1004 (D. Kan. 1993). In

Meredith, the court permitted the taxation of a videotape transcript if it was

“necessarily obtained for use in the case” as required by section 1920(2). The

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court concluded that taxation of a transcript would be appropriate if it had "a

legitimate use independent from or in addition to the videotape which would

justify its inclusion in an award of costs." Id. at 1006. The court noted that a

videotape could be lost, erased, or fall prey to technical difficulty. Id. The court

also stressed that the parties could more easily edit objectionable portions of

deposition testimony from a transcript. Id. In addition, the court observed that

appellate courts could more efficiently review claims of error relating to

deposition testimony by reference to a transcript than to a videotape deposition.

Id. Finally, the court noted that in many cases, a party insists that the opposing

party arrange to have a transcription made as a condition for obtaining an order

allowing a videotape deposition. Id. Thus, the court found an independent,

legitimate use for the transcript apart from the videotape and allowed the cost to

be taxed. Id.

We conclude that the district court did not abuse its discretion in taxing the

costs of both the preparation and transcription of the seven videotaped

depositions. 4 We agree, under the reasoning of Meredith, that in most cases, a

4
In so holding, we have reviewed the applicable authority from other circuits. In
two cases, the Seventh Circuit held that a transcript of a video deposition is not taxable
under the pre-1993 version of Rule 30(b). Barber v. Ruth, 7 F.3d 636, 645 (7th Cir.
1993); Commercial Credit Equip. Corp. v. Stamps, 920 F.2d 1361, 1369 (7th Cir. 1990).
Prior to 1993, Rule 30(b)(4) provided that the parties could stipulate that the testimony at
a deposition be recorded by nonstenographic means but that "[a] party may arrange to
have a stenographic transcription made at the party's own expense.” (Emphasis added).

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stenographic transcript of a videotaped deposition will be “necessarily obtained

for use in the case.”

We also note that our view is consistent with the obligations imposed by

the Federal Rules of Civil Procedure. In particular, Rule 26 requires a party who

has noticed a deposition to be taken by nonstenographic means to provide a

transcript to opposing parties as part of its discovery obligations. Fed. R. Civ. P.

26(a)(3)(B). 5 Rule 32(c) requires a party to provide a transcript of a video

The court reasoned that this language precluded a court from taxing the costs of a
stenographic transcript of a videotaped deposition. Barber, 7 F.3d at 645; Commercial
Credit Equip. Corp., 920 F.2d at 1369. The present case is distinguishable from Barber
and Commercial Credit because the 1993 amendments to Rule 30 deleted the operative
language. Rule 30(b)(2) now states that “[a]ny party may arrange for a transcription to be
made from the recording of a deposition taken by nonstenographic means.” The phrase
“at the party's own expense” is conspicuously absent. See Garonzik v. Whitman Diner,
910 F. Supp. 167, 171-72 (D.N.J. 1995) (holding that under new Rule 30(b)(2), the costs
of both the preparation and transcription of a videotaped deposition is taxable).
In Morrison v. Reichhold Chemicals, Inc., 97 F.3d 460, 464-65 (11th Cir. 1996),
the Eleventh Circuit recently discussed when a prevailing party could recover the costs of
both a videotaped deposition and the transcript. The court held that “when a party notices
a deposition to be recorded by nonstenographic means, or by both stenographic and
nonstenographic means, and no objection is raised at that time by the other party to the
method of recordation pursuant to Federal Rule of Civil Procedure 26(c), it is appropriate
under § 1920 to award the cost of conducting the deposition in the manner noticed.” Id.
at 464-65. We respectfully disagree with Morrison to the extent that the recording
method contained in the deposition notice controls whether a court may tax the costs
associated with the recording method. Instead, we conclude that the appropriate inquiry
is whether the recording method has been “necessarily obtained for use in the case” as
mandated by section 1920(2).
5
Rule 26(a)(3)(B) states: “[A] party shall provide to other parties the following
information regarding the evidence that it may present at trial other than solely for
impeachment purposes: . . . the designation of those witnesses whose testimony is
expected to be presented by means of a deposition and, if not taken stenographically, a

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deposition that the party intends to offer as evidence at trial or upon a dispositive

motion. Fed. R. Civ. P. 32(c). 6 Thus, in this case, the district court did not abuse

its discretion in concluding that both the videotapes and transcripts were

“necessarily obtained.”

V. C OSTS OF T RANSLATING D OCUMENTS

Section 1920(6) provides for taxation of “compensation of interpreters.”

28 U.S.C. § 1920(6). In this case, the defendants sought to recover the costs of

translating from Tamil to English certain documents that Daniel Dayanandhan

produced at his deposition. Tilton objected to the award, asserting that the

deposition exhibits were not necessary because the district court did not refer or

rely on the exhibits in granting summary judgment for the defendants. The clerk

disagreed and taxed Tilton $1,675.00 in translation expenses. Before the district

court, Tilton again argued that the translation expenses were not necessary. On

review, the district court concluded that taxation of the translator fees was

appropriate.

transcript of the pertinent portions of the deposition testimony.”
6
Rule 32(c) states: “Except as otherwise directed by the court, a party offering
deposition testimony pursuant to this rule may offer it in stenographic or nonstenographic
form, but, if in nonstenographic form, the party shall also provide the court with a
transcript of the portions so offered. On request of any party in a case tried before a jury,
deposition testimony offered other than for impeachment purposes shall be presented in
nonstenographic form, if available, unless the court for good cause orders otherwise.”

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 On appeal, Tilton claims that because section 1920(6) only provides for

taxation of “compensation of interpreters,” translation costs are not recoverable.

See Viacao Aerea Sao Paulo, S.A. v. International Lease Fin. Corp., 119 F.R.D.

435, 440 (C.D. Cal. 1988) (holding that a prevailing party could not recover

translation costs under section 1920(6)). We do not address Tilton’s argument,

however, because Tilton failed to raise this issue before the district court. See

Sac & Fox Nation, 47 F.3d at 1063.

CONCLUSION

For the foregoing reasons, we conclude that the district court did not abuse

its discretion in taxing: (1) the transcription costs for forty-six depositions, (2) the

travel and subsistence expenses of ten deponents, (3) the copying costs for

numerous deposition exhibits, trial exhibits, imaged documents, and third-party

documents, (4) the preparation and transcription costs for ten videotaped

depositions, and (5) the translation costs for deposition exhibits. We therefore

AFFIRM the order of the district court taxing Tilton $135,830.34 in costs. We

DENY Tilton’s motion to strike the portions of the defendants’ supplemental

appendix.

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