Carol Elaine Williams, by Her Mother and Next Friend, Marcia Williams v. St. Joseph Hospital

FAIRCHILD, Chief Judge,

dissenting in part.

I agree with the opinion, except for the portion in which the court discusses the trial court’s ruling that plaintiffs must pay for transcription of certain depositions.

Plaintiffs noticed the deposition of all defendants, over fifty in number. Six physician defendants were actually deposed and those defendants requested transcripts of their depositions at plaintiffs’ expense. Pursuant to Local Rule 18,1 plaintiffs moved the court to order defendants to pay for the cost of transcription; plaintiffs suggested that they had no need for these transcripts and claimed that they could not afford the cost of transcription. The trial court denied plaintiffs’ motion, which denial is challenged as an abuse of discretion.

Federal Rule of Civil Procedure 30 does not require the transcription of all depositions nor specify which party shall pay for a deposition which is requested to be transcribed.2 It is a general rule that the party *455noticing a deposition pays for the costs necessarily incurred as a result of the deposition such as transportation costs, stenographic reporter’s fees, and payments to expert witnesses. In the normal course of events, a party noticing a deposition will cause it to be transcribed at his expense; any party or a deponent may then obtain a copy at his own expense. The issue before us arises because the cost of original transcription is significantly greater than the cost of producing a copy of a deposition which has already been transcribed.

We do not find any case construing Local Rule 18, but do note four decisions of district courts discussing this aspect of FRCP 30 prior to the 1970 amendments. In each of those cases, the party noticing the deposition had decided it did not wish to have it transcribed but the opposing party did. The court in Odum v. Willard Stores, Inc., 1 F.R.D. 680 (D.D.C.1941) ruled that, in the absence of unusual circumstances, the party noticing a deposition is not required to have it transcribed and that an opposing party wishing a transcription should pay for it when the noticing party does not want the deposition to be transcribed. In Burke v. Central-Illinois Securities Corp., 9 F.R.D. 426 (D.Del.1949), the court required the noticing party to pay the cost of transcription and to file the transcript with the court; the opposing party could then get a copy of the transcript at its expense. Dall v. Pearson, 34 F.R.D. 511 (D.D.C.1963) represents a third view. In Dali, the court held that the «matter was within the court’s discretion to determine but that under the facts of the case the noticing party had to bear the cost of transcription. The court in Kolosci v. Lindquist, 47 F.R.D. 319 (N.D.Ind.1969) decided that “the person initiating the taking of the deposition should pay for its transcription and filing . . . [Except] in extraordinary cases. Then, and only then, should the court exercise its discretion.” Id. at 321. Such exceptional circumstances would include instances in which the discovery process had been abused by the party not taking the deposition, or the deposition had turned out to be of no value to any party. Id.

The present rule provides that transcription shall be carried out unless all parties waive it. In view of the many depositions taken from which nothing useful is discovered, the revised language provides that transcription is to be performed if any party requests it. The fact of the request is relevant to the exercise of the court’s discretion in determining who shall pay for the transcription.

I think that, in light of the change made in the Federal Rules in 1970, the district court should have discretion in deciding which party should bear the cost of transcription when the noticing party does not wish to have a deposition transcribed, but that such discretion should not be applied as restrictively as suggested in Kolosci. One commentator has suggested “that the party initiating the deposition has no funds with which to pay for transcription and does not desire a transcript would seem to be a good reason to put the financial burden on the party requesting the transcript.” C. Wright & A. Miller, Federal Practice and Procedure, § 2117 (1970). This application of the court’s discretion would prevent parties from discouraging their opponents’ use of depositions for discovery by making that use prohibitively expensive; preventing such a result is especially important in cases like the one before us in which the noticing party is allegedly without great financial resources. This result would also conform to what I assume is common practice in the courts. I find no defect in Local Rule 18 because it does properly assume that in most cases the cost of transcription of depositions will be borne by the party taking the deposition and that the court may alter that normal rule for good cause. I would find that the district court failed to consider whether the circumstances present here constituted good cause under Local Rule 18 to shift the cost of transcription of depositions to the defendants who had requested the transcripts.

. United States District Court, Northern District of Illinois, Rule 18 reads, in pertinent part: “(b) The party taking the deposition shall assume the cost of the transcription unless, upon consent of the parties, the court permits such transcription to be waived or orders a different apportionment of cost for good cause shown.”

. Rule 30(c) provides in part that “[i]f requested by one of the parties, the testimony shall be transcribed.” This language was adopted in 1970, replacing the rule that “testimony shall be transcribed unless the parties *455agree otherwise.” (Emphasis added). The change was explained in the committee note as follows: