Opinion
A01-309 CV (JWS), (Re: Motion at docket 232).
May 17, 2005
ORDER FROM CHAMBERS
I. MOTION PRESENTED
At docket 232 plaintiff/appellee Lumbermens Mutual Casualty Co. ("Lumbermens") moves for an order requiring defendants/appellants Luciano Enterprises, LLC and Albert Maffei ("Maffei") to include and pay for a transcript of additional portions of the trial proceedings pursuant to Circuit Rule 10-3. Maffei opposes the motion. Oral argument has not been requested and would not assist the court.
II. DISCUSSION
Circuit Rule 10-3 contemplates that where an appellant designates less than a complete transcript of all trial proceedings, an appellee who deems that a transcript of additional portions of the trial should be included with the transcript designated by appellee may request that such be included. An appellant is then ordinarily obligated to procure and pay for the additional portions. However, an appellee may dispute the need for the additional portions. Circuit Rule 10-3.1(f) provides as follows:
If appellee notifies appellant that additional portions of the transcript are required pursuant to 9th Cir. R. 10-3.1(b), appellant shall make the arrangements with the court reporter to pay for these additional portions unless appellant certifies that they are unnecessary to the appeal and explains why not.
If such a certificate is filed in the district court with copies to the court reporter and this court, the district court shall determine which party shall pay for which portions of the transcript. Appellant may ask the Court of Appeals for an extension of time to make arrangements with the court reporter to pay for the transcripts pending the district court's resolution of the issue.
In this case, Maffei designated a portion of the testimony of one witness, Bruce Dickstein, and nothing more. Lumbermens gave Maffei notice that it wanted a transcript of opening statements, all witnesses' testimony, and the closing arguments included. Maffei attempts to justify the very limited designation on the grounds that nothing else is needed for consideration of the issues which he identified in his notice of appeal which focus on pre-trial rulings by the court.
The problem with Maffei's position is two-fold. First, he has clearly appealed from the judgment which is based on the jury verdict rendered on the basis of the presentation at trial as well as certain pre-trial orders. Second, the evidence presented and jury verdict rendered at trial establish that Maffei's bad faith claim, which the court dismissed prior to trial, had no merit, because the jury found that Lumbermens acted in good faith in settling the Remtech claim and other claims. Arguments about the merits of the court's pre-trial orders should not be presented in a vacuum; the Court of Appeals should be offered the information necessary to gain a comprehensive understanding of the litigation and given a chance to thoroughly address all the issues on appeal. Having sat through the trial, this court is convinced that access to all of the testimony at trial is appropriate. It is also important for the appellate court to understand the issues as they were presented by the parties in the lawyers' respective opening and closing statements. The additional transcripts requested should be made available to the Court of Appeals.
Notice of Appeal, docket 220.
The court notes that a blanket designation of all testimony such as is made by Lumbermens, rather than a designation of selected portions from the testimony of all witnesses, is the most expensive way to proceed. While most of the testimony is important, certainly not all of it is worth transcribing. Lumbermens could have made, but chose not to make, an effort to be more precise and frugal in its designation. Accordingly, the court deems it inappropriate to tax Maffei with final responsibility for the entire cost of preparing the transcript. Rather, to take into account the easy, but costly approach adopted by Lumbermens, the court will provide that Lumbermens must reimburse Maffei for forty-five percent (45%) of the cost of the transcripts prepared for the appeal. This approach will leave the court reporter with one person to whom it may look for payment — Maffei, but will allow Maffei to recover back nearly half of the cost of the transcripts.
III. CONCLUSION
For the reasons set forth above, the motion at docket 232 is GRANTED and IT IS ORDERED:
1. Defendants/appellants Maffei shall designate a transcript on appeal which includes all the trial testimony and counsel's opening statements and closing arguments.
2. Defendants/appellants Maffei shall arrange and pay for the preparation of such transcript.
3. Within 30 days after presentation to Lumbermens' counsel of proof of payment by Maffei for the preparation of the transcript, Lumbermens shall reimburse Maffei forty-five percent (45%) of the amount actually paid by Maffei.
4. If the charges are incurred in increments, Maffei shall accumulate the charges until all have been paid before seeking any reimbursement from Lumbermens.