                   United States Court of Appeals,

                           Eleventh Circuit.

                                 No. 94-9175.

  Roger Dale MORRISON, Sr., and Linda S. Morrison, Plaintiffs-
Appellants,

                                      v.

  REICHHOLD CHEMICALS, INC., Defendant, Third-Party Plaintiff,
Appellee,

Goodyear Tire and Rubber Company and Industrial Rubber and Safety
Products, Incorporated, Third-Party Defendants.

                             Oct. 10, 1996.

Appeal from the United States District Court for the Northern
District of Georgia. (No. 4:91-cv-229-RLA), Robert L. Vining, Jr.,
District Judge.

Before HATCHETT, Chief Judge, BIRCH, Circuit Judge, and GODBOLD,
Senior Circuit Judge.

     PER CURIAM:

     Among various challenged trial errors and costs rulings by the

district court, this appeal presents the first-impression issue for

our circuit of whether video depositions are taxable as costs under

28 U.S.C. § 1920(2) and Federal Rule of Civil Procedure 30(b)(2)

and (3) without such a stipulation by the parties.            We affirm all

rulings by the district court with the exception of the taxation of

costs   for   expert   witness    fees,    which   we   reverse,   and   video

depositions, which we reverse in part and remand for further

proceedings consistent with this opinion.

                             I. BACKGROUND

     Plaintiffs-appellants, Roger Dale Morrison, Sr. and Linda S.

Morrison ("the Morrisons"), brought this action for negligence

against defendant-appellee, Reichhold Chemicals, Inc. ("Reichhold")
and sought damages for injuries that Linda Morrison allegedly

suffered as a result of exposure to fumes resulting from a chemical

explosion and fire at the Reichhold Chemical plant in Walker

County, Georgia on July 14, 1991, and for Roger Morrison's loss of

consortium.       For the purpose of the trial, Reichhold stipulated

that it would concede negligence if the jury found that Linda

Morrison had been injured and that her injury was a result of

exposure    to    chemicals   from    the   Reichhold   fire.    Following      a

nine-day trial, the jury rendered a verdict for Reichhold and found

in a special interrogatory that Linda Morrison had not been exposed

to any product of Reichhold.

     The Morrisons filed a motion for a judgment notwithstanding

the verdict and, alternatively, for a new trial.            Reichhold filed

a motion for taxation of costs against the Morrisons. The district

court entered an order that denied the Morrisons' motion and taxed

costs in the amount of $8,282.10 in favor of Reichhold.                       The

Morrisons claim that the district court committed four errors in

the course of the trial that require a reversal by this court:                (1)

that the district court erred in refusing to allow their toxicology

expert, Jesse Bidanset, to testify;            (2) that the district court

abused   its     discretion   and    created   confusion   for   the   jury    in

admitting Linda Morrison's complete set of medical records into

evidence;      (3) that the district court erred in its instruction

regarding preponderance of the evidence;            and (4) that the trial

court erred in failing to modify its instruction on the admission

of negligence by Reichhold and the use of circumstantial evidence

to prove exposure.      We find no merit to the Morrisons' challenge of
the court's evidentiary rulings and charge to the jury, and we

affirm without discussion the court's denial of their motion for a

judgment notwithstanding the verdict or for a new trial.

                                 II. ANALYSIS

         The    Morrisons     appeal    the   district      court's   grant    of

Reichhold's post-trial motion for the taxation of costs.                      The

Morrisons      specifically    object   to    the   trial   court's   award    of

$2,208.20 to Reichhold in expert witness fees and $1,168.80 to

Reichhold for the videotaping of several depositions. 1               We review

a district court's decision to tax costs for clear abuse of

discretion.      Tanker Management, Inc. v. Brunson, 918 F.2d 1524,

1527 (11th Cir.1990).

A. Expert Witness Fees

         With   regard   to    expert   witness     fees,    Reichhold   sought

reimbursement for the fees charged by the Morrisons' experts, Dr.

David Bosshardt, Dr. Yune-Gill Jeong, and Mr. Neal Pascal, to

appear at video depositions noticed by the Morrisons and attended




     1
      In the district court, the Morrisons raised additional
objections to Reichhold's motion to tax costs. The Morrisons
originally objected to Reichhold's motion as procedurally
defective because it was not verified with an affidavit as
required by 28 U.S.C. § 1924. Reichhold conceded to the district
court that its original motion was not in compliance with § 1924
but argued that it was entitled to supplement its motion after
the filing deadline in order to comply with the verification
requirement. The district court allowed Reichhold to supplement
the verification and considered the merits of the bill of costs.
The Morrisons also objected to various other depositions and
copying costs as excessive, and the district court, upon review
of the depositions, allowed the costs sought by Reichhold.
Because the Morrisons do not raise either of these issues on
appeal, we do not address the merits here.
by counsel for Reichhold. 2           The expert fees charged to Reichhold

for depositions were: Dr. Bosshardt, $225.00; Dr. Jeong, $833.20;

and Mr. Pascal, $1,150.00.

            Rule    54(d)(1)   of   the    Federal     Rules   of    Civil    Procedure

provides that "costs ... shall be allowed as of course to the

prevailing party unless the court otherwise directs." Fed.R.Civ.P.

54(d)(1).          A witness who appears before a federal court "or before

any person authorized to take his deposition pursuant to any rule

or order of a court of the United States" is entitled to fees and

allowances, including "an attendance fee of $40 per day for each

day's attendance."             28 U.S.C. § 1821(a)(1) & (b) (West 1996).

Section 1920 of title 28 provides that "[a] judge or clerk of any

court of the United States may tax as costs ... [f]ees and

disbursements for printing and witnesses."                     28 U.S.C. § 1920(3)

(West       1996).      "The   logical     conclusion     from      the    language   and

interrelation of these provisions is that § 1821 specifies the

amount of the fee that must be tendered to a witness, § 1920

provides that a fee may be taxed as a cost, and Rule 54(d) provides

that the cost shall be taxed against the losing party unless the

court otherwise directs."            Crawford Fitting Co. v. J.T. Gibbons,

Inc., 482 U.S. 437, 441, 107 S.Ct. 2494, 2497, 96 L.Ed.2d 385

(1987).

            In Crawford, the Supreme Court held that, "when a prevailing

party       seeks    reimbursement        for   fees   paid    to    its    own   expert

witnesses, a federal court is bound by the limit of § 1821(b),

        2
      Although Dr. Bosshardt and Dr. Jeong were listed as experts
by the Morrisons, they also were treating physicians of Linda
Morrison. Mr. Pascal was plaintiff's expert in meteorology.
absent contract or explicit statutory authority to the contrary."

Id. at 439, 107 S.Ct. at 2496.          The district court attempted to

distinguish the holding in Crawford from this case by noting that

in Crawford,

     the Court did not decide whether a losing party could be
     required to pay the fee charged by his expert witnesses when
     they were deposed by the winning party. Although this court
     recognizes that there is language in Crawford Fitting which
     indicates that no fee other than the $40 witness fee permitted
     by 28 U.S.C. § 1821 would be allowable, this court also
     believes that such an interpretation would be contrary to fair
     play and common sense.

          Technically, an expert identified by one party and
     deposed by the other party is entitled to [a] fee of only $40
     per day.   However, that is not how the modern, real world
     operates. It is a common practice for an expert to charge
     considerably more than $40 per day for his testimony....
     Recognizing that a party is virtually held hostage to the fee
     charged by the opposing party's experts, this court holds that
     the winning party is entitled to reimbursement for the fees
     charged by the losing party's expert witnesses.

R14-130-6-7.      Although    we   appreciate      the   district   court's

frustration    with   the   disparity    between   economic   reality   and

statutory imperative, we cannot ignore the Supreme Court's direct

statements to the contrary:

     We think that it is clear that in §§ 1920 and 1821, Congress
     comprehensively addressed the taxation of fees for litigants'
     witnesses. This conclusion is all the more compelling when we
     consider that § 1920(6) allows the taxation, as a cost, of the
     compensation of court-appointed expert witnesses. There is no
     provision that sets a limit on the compensation for
     court-appointed expert witnesses in the way that § 1821(b)
     sets a limit for litigants' witnesses. It is therefore clear
     that when Congress meant to set a limit on fees, it knew how
     to do so.    We think that the inescapable effect of these
     sections in combination is that a federal court may tax expert
     witness fees in excess of the $[40]-per-day limit set out in
     § 1821(b) only when the witness is court-appointed.        The
     discretion granted by Rule 54(d) is not a power to evade this
     specific congressional command. Rather, it is solely a power
     to decline to tax, as costs, the items enumerated in § 1920.

Crawford, 482 U.S. at 442, 107 S.Ct. at 2497-98 (emphasis added).
Therefore, we find that the district court erred in taxing as costs

any amount for expert witness fees in excess of the $40 per day

allowed under § 1821, and, upon remand, the district court should

reduce the taxable costs accordingly.

B. Videography

          The Morrisons object to the district court's taxation of the

cost of the video depositions of their experts, Dr. Jeong, Dr.

Bosshardt, and Dr. Garretson, and the registered nurse, Billie

Precise, who treated Linda Morrison in the emergency room on the

night of the Reichhold fire. The Morrisons noticed the depositions

of   Dr.    Jeong,   Dr.   Bosshardt,   and   Dr.   Garretson.   The   video

deposition of Billie Precise, however, was taken by Reichhold,

which seeks reimbursement of the costs of obtaining copies of the

video tapes of these depositions as well as $1,090.42 for the cost

of the videographer, who displayed the videos at the trial.                The

Morrisons argue that these costs were incurred for the convenience

of the parties and are not items that are taxable as costs against

the losing party.

      During the discovery period, the parties filed a stipulation
                                                                       3
that,      pursuant to Federal Rule of Civil Procedure 29,                 the

depositions of any and all treating physicians could be videotaped

for use in evidence at trial.           The parties also stipulated that,

"[i]n the event any other depositions are taken for evidence in


      3
      Federal Rule of Civil Procedure 29 provides in relevant
part that, "[u]nless otherwise directed by the court, the parties
may by written stipulation (1) provide that depositions may be
taken before any person, at any time or place, upon any notice,
and in any manner and when so taken may be used like other
depositions...." Fed.R.Civ.P. 29(1).
this case, by Plaintiffs, provisions of this Stipulation shall

apply, and such deposition may be video-taped in accordance with

the terms and provisions hereof."     R11-94-1.   Finally, the parties

stipulated that "[a]ll of the costs of the video-taping shall be

borne by Plaintiffs, and shall not be taxed as costs against

Defendant," and that Reichhold could copy the videotapes at its own

expense.     Id. at 3.   However, the parties neither stipulated that

the cost of any copies made by Reichhold would not be taxable as

costs, nor that the cost of any videotaping conducted by Reichhold

would not be taxed to the Morrisons.      Therefore, we must address

the issue of whether, absent a stipulation to the contrary, video

depositions are taxable as costs under the United States Code and

Federal Rules of Civil Procedure.

     The Morrisons claim that § 1920 excludes video depositions as

a taxable cost because it mentions only stenographic depositions.

The district court rejected this argument and stated that,

     even though 28 U.S.C. § 1920 speaks only of "stenographic"
     transcription costs, the court believes that the costs of
     video depositions are encompassed by that code section. Video
     depositions were virtually unknown at the time that section
     1920 was adopted, and this court does not believe that a party
     should be penalized because he has chosen to preserve and
     present testimony through video as opposed to a printed
     transcript. Consequently, the court will allow these costs.

R14-130-6.     We conclude that the most logical resolution of this

issue is to interpret § 1920(2) in conjunction with Federal Rule of

Civil Procedure 30(b)(2) and (3).        Section 1920(2) permits the

taxing of costs for "[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) (West 1996).    Under Federal Rule of

Civil Procedure 30(b)(2) and (3):
          (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.

Fed.R.Civ.P. 30(b)(2) and (3) (West 1996).4             Reading these two

provisions   together,   we   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


     4
      Prior to the 1993 amendments, Federal Rule of Civil
Procedure 30(b)(4) provided that the parties could stipulate that
the testimony at a deposition be recorded by other than
stenographic means but that "[a] party may arrange to have a
stenographic transcription made at the party's own expense."
(emphasis added). One federal court summarized the changes to
the rules as follows:

          Rule 30(b)(2) is the current provision authorizing the
          taking of depositions by other than stenographic means,
          and it states that "[a]ny party may arrange for a
          transcription to be made from the recording of a
          deposition taken by nonstenographic means."
          Conspicuously absent is the phrase "at the party's own
          expense." The court notes that the revised rules
          contain an express requirement that a party who has
          noticed a deposition to be taken by other than
          stenographic means must provide a transcript to
          opposing parties as part of its discovery obligations.
          Fed.R.Civ.P. 26(a)(3)(B). That party must also provide
          a transcript if the video deposition is to be offered
          as evidence at trial or upon a dispositive motion.
          Fed.R.Civ.P. 32(c). Thus, under the revised rules, it
          is clear that a transcript of a videotape deposition is
          not for the "convenience of counsel," but rather is an
          express obligation.

     Garonzik v. Whitman Diner, 910 F.Supp. 167, 171-72
     (D.N.J.1995) (alteration in original).
at that time by the other party to the method of recordation

pursuant    to    Federal   Rule   of   Civil   Procedure      26(c),5   it   is

appropriate under § 1920 to award the cost of conducting the

deposition in the manner noticed.

     We recognize that, although our insistence on strict adherence

to the language of §§ 1821 and 1920(3) with regard to the taxation

of expert witness fees may seem to contradict our less literal

interpretation of the phrase "stenographic" in § 1920(2), we have

attempted    to    remain   consistent    in    our   method    of   statutory

interpretation.      In the case of expert witness fees, the Supreme

Court has offered a clear interpretation of the statute that

controls our decision.       The Supreme Court has yet to address the

topic of videotaped depositions.           When viewed in light of the

Federal Rules of Civil Procedure, which allow depositions to be

recorded in any number of ways, the most logical conclusion is that

"a videotaped deposition is more appropriately taxed as is any

     5
        Federal Rule of Civil Procedure 26(c) provides in relevant
part:

                 Upon motion by a party or by the person from whom
            discovery is sought, ... the court in the district
            where the deposition is to be taken may make any order
            which justice requires to protect a party or person
            from annoyance, embarrassment, oppression, or undue
            burden or expense, including one or more of the
            following:

                   ....

                 (3) that the discovery may be had only by a method
            of discovery other than that selected by the party
            seeking discovery....

     Fed.R.Civ.P. 26(c)(3). The district court's decision to
     grant or deny a Rule 26(c) objection becomes the final
     determination of the method of recordation of the deposition
     that is taxable.
other deposition expense."       Jamison v. Cooper, 111 F.R.D. 350, 352

(N.D.Ga.1986);     see Commercial Credit Equip. Corp. v. Stamps, 920

F.2d    1361,   1368   (7th   Cir.1990)   (stating   that   "[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.      We must not seem reluctant to adopt any and all

time-saving methods that serve to improve our system of justice").

       In this case, however, our determination that the taxation for

the cost of video depositions is allowable under § 1920 does not

end our analysis.      We must decide whether the copies of the videos

obtained by Reichhold were "necessarily obtained for use in the

case."    28 U.S.C. § 1920(2).    Reichhold has offered no explanation

of why it was necessary to obtain a copy of the video tapes for use

in the case.      Because the record is inadequate to resolve this

issue, we remand the case to the district court for further

findings on the necessity of the video copying costs that Reichhold

contends are taxable.      We find adequate support in the record for

the necessity of deposing Billie Precise, but we have found no

evidence that Reichhold noticed her deposition to be videotaped

rather than transcribed.       It is necessary, therefore, to remand

this portion of the case to the district court to allow Reichhold

to present evidence that it noticed Precise's deposition as a video

deposition.     Otherwise, Reichhold will be entitled only to costs,

upon proper proof, in the amount of the cost of a stenographic

transcript.

         With regard to the fee charged by the videographer, it
appears from the invoices attached to Reichhold's motion to tax

costs that a large portion of the $1,090.42 requested was for video

playback equipment rental.         We find nothing in § 1920, the Federal

Rules of Civil Procedure, or case law to support the taxation of

costs for equipment rental or fees charged by a videographer for

playback of video depositions at trial.            Therefore, we reverse the

district court's taxation of $1,090.42 for the videography costs

during trial.

                                 III. CONCLUSION

     The Morrisons have challenged the district court's trial and

costs rulings.     We conclude that the district court's evidentiary

rulings    and   jury   charge    were   correct.     Our   review,   however,

establishes that the district court erred in its taxation of costs

for expert witness fees in excess of the statutory amount of $40

per day.    We also conclude that, although the district court was

correct in its determination that costs of video depositions are

taxable under § 1920(2), it is necessary to remand the case for a

determination of whether the costs incurred by Reichhold with

regard to video deposition tapes were "necessarily obtained for use

in the case" and whether the deposition of Billie Precise was

noticed properly.        Accordingly, we remand with instructions to

reduce the taxation of expert witness fees to the statutory amount,

to vacate the taxation of the videography costs during trial, to

determine whether it was necessary for Reichhold to obtain copies

of the video depositions of Dr. Jeong, Dr. Bosshardt, and Dr.

Garretson, to determine whether Billie Precise's deposition was

noticed as a video deposition, and to tax the appropriate costs.
AFFIRMED in part, REVERSED in part, and REMANDED.
