A prevailing party in a civil lawsuit is not entitled to collect from the losing party the costs of acquiring the transcript of a deposition that it uses in support of a motion for summary judgment, the Ohio Supreme Court ruled today.

R.C. 2303.21 allows a prevailing party in a lawsuit to recover the costs associated with procuring a transcript of a “proceeding” when the transcript is necessary for an appeal or other civil action.  In today’s ruling, the Supreme Court held that a deposition conducted outside the presence of a judge is not a proceeding under that statute and the costs of procuring the deposition transcript may not be recovered from the losing party. 

The Supreme Court reversed a Tenth District Court of Appeals decision awarding AirNet systems $3,642 in court costs after the company prevailed in an age discrimination case brought by former employee Dan Vossman in 2011. Writing for the Court majority, Justice R. Patrick DeWine explained AirNet attempted to include transcripts of depositions it took during discovery as part of the costs chargeable to the losing party. Because the Court found deposition transcripts do not fall within the definition of court “proceedings,” they are not court costs, he wrote.

To determine the meaning of “proceeding,” Justice DeWine turned to the common understanding of the word in 1859 when Ohio adopted the law allowing the prevailing party to recoup court costs.

Justices Sharon L. Kennedy, Judith L. French, Michael P. Donnelly, and Melody J. Stewart joined Justice DeWine’s opinion. Chief Justice Maureen O’Connor concurred in judgment only.

In his dissenting opinion, Justice Patrick F. Fischer reached ever further back in time, noting that Ohio lawmakers adopted a Code of Civil Procedure in 1853, which would have been in effect when the court cost law was adopted in 1859. He maintained that, based on the code, a deposition fit within the definition of a “proceeding” and the costs of securing a transcript can be recouped.

Suit Ended Without Trial
Vossman named the company and two executives in his age discrimination lawsuit filed in Franklin County Common Pleas Court. At the preliminary stages, the parties took depositions from Vossman and four AirNet employees.

AirNet then sought summary judgment from the trial court. In support of its argument, the company cited information from several of the transcripts and filed portions of the transcripts with the court. The court granted AirNet summary judgment.

AirNet, relying on R.C. 2303.21, requested the court to award it $3,642 to recover from Vossman the costs of gathering deposition transcripts. The trial court agreed. Vossman to the Tenth District, which affirmed the trial court’s decision.

Vossman appealed to the Supreme Court, which agreed to hear the case.

State Law Establishes Costs That Can Be Recovered
The Court explained that under Ohio Rule of Civil Procedure 54(D), courts can award costs to the prevailing party. However, the legislature, by statute, not the courts, establish what categories of expenses qualify as “costs.”

Vossman pointed to the Supreme Court’s 1998 Williamson v. Ameritech Corp. decision, which stated there is no general or specific state law allowing a court to award deposition expenses as a court cost.

Today’s opinion noted that Williamson dealt with another statute, R.C. 2319.27, concerning the fees and expenses a court reporter may charge for taking a deposition. Finding the case limited to interpreting that specific statute, the Court majority wrote that it had to independently assess whether R.C. 2303.21 entitled AirNet to the award.

The law states: “When it is necessary in an appeal, or other civil action to procure a transcript of a judgment or proceeding, or exemplification of a record, as evidence in such action or for any other purpose, the expense of procuring such transcript or exemplification shall be taxed in the bill of costs and recovered as in other cases.” The opinion noted the law has undergone only minor revisions since its passage in 1859.

Court Examines Meaning of Words at Time of Law’s Passage
The majority opinion stated that lawmakers did not define “proceeding” in R.C. 2303.21. The Court interprets undefined words by their plain and ordinary meaning. If words have a technical legal meaning when used in the context of a law, the Court will look at the technical legal meaning of the word when the law was passed, the opinion stated.

The leading law dictionaries of the late 1800s defined “proceedings” as acts taking place before a court or judicial officer. Transcripts of proceedings document what transpired in a court or other adjudicative body, the Court noted. 

“The conclusion that under the statute a transcript of a proceeding documents what happened in the court is further supported by the fact that elsewhere in the Code of Civil Procedure in place in 1859, the phrase ‘transcript of a proceeding’ refers to components of the court’s record,” the opinion stated.

The Court noted that in 1859, there was nothing similar to modern civil lawsuit discovery procedures, where many matters leading up to a trial are conducted privately between the parties. A deposition, at the time of the law’s passage, was evidence gathered outside of court, and was to be primarily used when a witness for limited reasons could not attend the trial. The deposition would be read into the record at the trial and would be part of the “proceeding,” the Court stated.

Looking at the “historical indicators,” the Court concluded the general costs associated with gathering evidence would not be included as court costs.

History Says Otherwise, Justice Maintained
In his dissent, Justice Fischer wrote the Code of Civil Procedure passed by lawmakers in 1853 allowed for the testimony of witnesses to be taken by deposition. The depositions had to be taken by an “officer,” which included a judge, a Supreme Court clerk, a justice of the peace or “any person empowered by a special commission.”

The dissent stated the law at the time seemed to indicate a deposition was very much a part of the court proceeding and even allowed a party to recover its costs.  In Shaw v. Ohio Edison Installation Co., a decision from 1887, an Ohio courtstated that if a deposition is not used at all, then the party taking it must pay the costs.

Justice Fischer maintained that although the use of depositions has expanded and the procedures for taking them have been relaxed over the years, the cost of deposition transcripts that are used as evidence should be recoverable.

“After all, a deposition is just as much a part of the proceeding today as it was in the 1800s,” he wrote.

2017-1688. Vossman v. AirNet Sys. Inc., Slip Opinion No. 2020-Ohio-872.

View oral argument video of this case.

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