B-201448.OM, JAN 22, 1982

B-201448.OM: Jan 22, 1982

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

PRACTICE OF COURTS IN SOUTHERN DISTRICT OF NEW YORK WHICH PROVIDES FOR CHARGING LITIGANTS FOR TRANSCRIPTS FURNISHED TO JUDGES IS CONSISTENT WITH CASE LAW INSOFAR AS PRACTICE IS LIMITED TO SITUATIONS IN WHICH LITIGANT IS ONE WHO REQUESTS THAT JUDGE RECEIVE COPY OF TRANSCRIPT. OLS: THE COMMENTS FROM THE SOUTHERN DISTRICT OF NEW YORK ARE CRITICAL OF THE REPORT'S CHARACTERIZATION OF ITS PRACTICE OF CHARGING LITIGANTS FOR COPIES OF TRANSCRIPTS PROVIDED TO THE COURT. " AND THEN STATES THAT THE ADMINISTRATIVE OFFICE'S GENERAL COUNSEL DETERMINED THAT SUCH CHARGES WERE UNAUTHORIZED BECAUSE THE COURT REPORTERS ACT REQUIRES THAT REPORTERS DELIVER A "TRANSCRIPT COPY TO ANY JUDGE WHO REQUESTS ONE.". THE COURT ALSO POINTS OUT THAT IT IS INCORRECT TO STATE THAT NO FURTHER ACTION HAS BEEN TAKEN.

B-201448.OM, JAN 22, 1982

SUBJECT: RESPONSE TO AGENCY COMMENTS ON COURT REPORTERS REPORT (CODE 188480; B-201448) DIGEST: CASE LAW PROVIDES THAT COURT REPORTERS NOT RECEIVE COMPENSATION FOR SERVICES RENDERED IN PREPARING TRANSCRIPT REQUESTED BY JUDGE. PRACTICE OF COURTS IN SOUTHERN DISTRICT OF NEW YORK WHICH PROVIDES FOR CHARGING LITIGANTS FOR TRANSCRIPTS FURNISHED TO JUDGES IS CONSISTENT WITH CASE LAW INSOFAR AS PRACTICE IS LIMITED TO SITUATIONS IN WHICH LITIGANT IS ONE WHO REQUESTS THAT JUDGE RECEIVE COPY OF TRANSCRIPT. SEE CASES CITED.

GROUP DIRECTOR, GGD - JOHN M. OLS:

THE COMMENTS FROM THE SOUTHERN DISTRICT OF NEW YORK ARE CRITICAL OF THE REPORT'S CHARACTERIZATION OF ITS PRACTICE OF CHARGING LITIGANTS FOR COPIES OF TRANSCRIPTS PROVIDED TO THE COURT. THE REPORT NOTES THAT SOUTHERN DISTRICT "REPORTERS HAD A LONGSTANDING PRACTICE IN CIVIL CASES OF CHARGING PRIVATE LITIGANTS FOR THE COPIES PROVIDED TO JUDGES," AND THEN STATES THAT THE ADMINISTRATIVE OFFICE'S GENERAL COUNSEL DETERMINED THAT SUCH CHARGES WERE UNAUTHORIZED BECAUSE THE COURT REPORTERS ACT REQUIRES THAT REPORTERS DELIVER A "TRANSCRIPT COPY TO ANY JUDGE WHO REQUESTS ONE." THE REPORT CONCLUDES BY STATING THAT THE DISTRICT COURT HAS TAKEN NO FURTHER ACTION AND ITS REPORTERS CONTINUE TO CHARGE LITIGANTS FOR COPIES PROVIDED TO THE JUDGE.

THE COURT'S COMMENTS STATE, I BELIEVE WITH JUSTIFICATION, THAT THE REPORT'S PRESENTATION SUGGESTS THAT THE COURT'S PRACTICE VIOLATES THE COURT REPORTERS ACT. THE COURT ALSO POINTS OUT THAT IT IS INCORRECT TO STATE THAT NO FURTHER ACTION HAS BEEN TAKEN. THE KEY ELEMENT OF THE COURT'S COMMENTS IS THAT LITIGANTS ARE CHARGED FOR COPIES PROVIDED TO THE COURT WHEN THE LITIGANTS REQUEST THAT A COPY BE FURNISHED TO THE JUDGE.

THE LEADING CASE IN THE AREA IS TEXAS CITY TORT CLAIMS V. UNITED STATES, 188 F.2D 900 (5TH CIR. 1951). THAT CASE HELD THAT A COURT REPORTER IS NOT ENTITLED TO COLLECT A FEE FOR SERVICES RENDERED IN PREPARING A TRANSCRIPT REQUESTED BY THE JUDGE. NO PARTY HAD REQUESTED A TRANSCRIPT AND WHEN THAT FACT WAS CALLED TO THE COURT'S ATTENTION, THE JUDGE REQUESTED A TRANSCRIPT. THE COURT HELD THAT THE REPORTER'S STATUTORY SALARY COMPENSATED HIM BOTH FOR THE TRANSCRIPT PREPARED FOR THE JUDGE AND A COPY OF THAT TRANSCRIPT FILED WITH THE CLERK OF COURT. IMPORTANT TO THE COURT'S RULING WAS THE LANGUAGE OF 28 U.S.C. 753(B) WHICH PROVIDES THAT THE REPORTER SHALL TRANSCRIBE THE RECORD OF PROCEEDINGS "UPON THE REQUEST OF ANY PARTY *** WHO HAS AGREED TO PAY THE FEE THEREFOR, OR OF A JUDGE OF THE COURT ***." THE COURT NOTED THAT THERE IS NO MENTION IN THE STATUTE OF ANY FEE BEING CHARGED THE JUDGE FOR DELIVERY OF A TRANSCRIPT TO HIM UPON HIS REQUEST.

OTHER COURTS HAVE RECOGNIZED THE DISTINCTION BETWEEN THE CASE IN WHICH THE PARTIES REQUEST A TRANSCRIPT AND THAT IN WHICH A JUDGE REQUESTS IT, INSOFAR AS A REPORTER'S ENTITLEMENT TO A FEE IS CONCERNED. IN A FOOTNOTE TO ITS RULING IN HITCHCOCK V. UNITED STATES, 479 F.SUPP. 65 (D.D.C. 1979), THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STATED THAT THE REPORTER WOULD HAVE RECEIVED NO COMPENSATION (BEYOND SALARY) FOR PREPARING A TRIAL TRANSCRIPT FOR THE COURT BECAUSE NEITHER PARTY ORDERED A TRANSCRIPT. FOR THAT REASON, THE COURT DID NOT REQUIRE THE REPORTER TO FURNISH A TRANSCRIPT. THE COURT NOTED THAT THE PRACTICE OF THE COURTS HAS BEEN TO NOT REQUEST REPORTERS TO FURNISH TRANSCRIPTS WHEN NOT ORDERED BY THE PARTIES AND THE COURT EXPRESSED ITS RELUCTANCE TO HAVE AN INDIVIDUAL REPORTER INCUR A FINANCIAL BURDEN NOT IMPOSED IN PRACTICE UPON REPORTERS GENERALLY.

THEREFORE, THE A.O.'S DETERMINATION, AS DESCRIBED IN THE REPORT, IS CONSISTENT WITH THE COURT CASES. HOWEVER, THE SOUTHERN DISTRICT'S POSITION ALSO IS CONSISTENT WITH CASE LAW INSOFAR AS ITS PRACTICE OF CHARGING LITIGANTS IS LIMITED TO SITUATIONS IN WHICH THE LITIGANT IS THE ONE WHO REQUESTS THAT THE JUDGE BE FURNISHED A COPY OF THE TRANSCRIPT. THE SOUTHERN DISTRICT MAKES A LEGITIMATE POINT WHEN IT STATES THAT "IF PARTIES WISH TO ACCOMMODATE THE JUDGE AND ORDER AN EXTRA COPY FOR HIM, THERE IS NO REASON WHY THEY SHOULD NOT PAY FOR THIS."

I UNDERSTAND FROM JIM MCMULLEN, SEATTLE REGIONAL OFFICE, THAT THE SOUTHERN DISTRICT USES A FORM ON WHICH LITIGANTS ARE ASKED, WHEN THEY REQUEST A TRANSCRIPT, WHETHER THEY WANT THE JUDGE TO RECEIVE A COPY. THEY RESPOND AFFIRMATIVELY, THE REQUESTER PAYS FOR THE JUDGE'S COPY. THE JUDGE THEN DOES NOT HAVE TO ASK THE REPORTER FOR A COPY (AT THE REPORTER'S EXPENSE) OR ASK THE CLERK OF COURT TO PROVIDE A COPY OF ITS CERTIFIED COPY (AT THE COURT'S EXPENSE). ONE COULD ARGUE THAT SUBMITTING SUCH A FORM TO THE LITIGANTS WITHOUT A COMPLETE EXPLANATION OF THE LITIGANTS' OPTIONS CREATES AN ATMOSPHERE IN WHICH LITIGANTS ROUTINELY AND, PERHAPS, UNKNOWINGLY REQUEST AND PAY FOR A COPY FOR THE JUDGE. AS WE DISCUSSED, IT WOULD BE DIFFICULT TO MAKE THAT ARGUMENT WITHOUT AUDIT SUPPORT SHOWING THAT THE LITIGANTS APPROVE SENDING A COPY OF THE TRANSCRIPT TO THE JUDGE FOR REASONS OTHER THAN THEIR OWN NEED, AS THEY PERCEIVE IT, TO MAKE SURE THAT THE JUDGE HAS THE TRANSCRIPT. SUCH OTHER REASONS COULD INCLUDE (1) REPORTERS ENCOURAGING LITIGANTS TO HAVE A COPY SENT TO THE JUDGE; (2) JUDGES ACTUALLY WANTING A COPY, BUT LITIGANTS ACCOMMODATING THE JUDGE BY CHECKING THE FORM INSTRUCTING THE COURT REPORTER TO SEND THE JUDGE A COPY; AND (3) JUDGES INSTRUCTING THE LITIGANT AND/OR COURT REPORTER TO HAVE THE FORM INDICATE THAT THE LITIGANT WANTS THE JUDGE TO HAVE A COPY. HOWEVER, WITHOUT SPECIFIC EVIDENCE OF THE REASONS WHY LITIGANTS REQUEST A COPY FOR THE JUDGE, THESE POSSIBILITIES ARE MERELY SPECULATIVE.

IF THE AUDIT WORKPAPERS DO NOT PROVIDE ANY GUIDANCE ABOUT WHY LITIGANTS REQUEST TRANSCRIPT COPIES FOR THE JUDGE, I WOULD SUGGEST THAT THE REPORT NOT CRITICIZE THE SOUTHERN DISTRICT'S PROCEDURES. OUR RESPONSE TO THE COMMENTS SHOULD ACKNOWLEDGE THAT THOSE PROCEDURES DO NOT VIOLATE THE COURT REPORTERS ACT TO THE EXTENT THAT LITIGANTS PAY FOR COPIES FOR THE JUDGE ONLY WHEN IT IS THE LITIGANT, NOT THE JUDGE, WHO IS REQUESTING THE TRANSCRIPT COPY.