United Transp. Union Local 1745 v. City Of Albuquerque, 2009 WL 2573815 (10th Cir. 2009)
There was an interesting little unpublished decision issued by the Tenth Circuit (McConnell, Tymkovich, O’Brien writing) this past Friday. An attorney represented a group of plaintiffs in a suit against the City of Albuquerque. The district court appointed a Special Master to conduct hearings, for which the City of Albuquerque ordered and paid for transcripts. The attorney for the plaintiff used the Inspection of Public Records Act, N.M. Stat. § 14-2-1 to 14-2-12, to obtain copies of the transcripts directly from the City, instead of paying the court reporter a higher fee.
The City and the court reporter complained to the district court and, after the case settled, the district court ordered the plaintiff’s counsel to pay the reporter a little over four thousand dollars. The attorney for the plaintiffs appealed in his individual capacity. The 10th Circuit overturned finding that to require the counsel to pay the fee would effectively give the court reporter a copyright in his transcripts:
We have found no authority to justify requiring plaintiffs, and derivatively their attorney . . . to pay a fee to a court reporter for a transcript copy the reporter did not make but, rather, that they legally obtained from another source by independent means. On the contrary, both broad principle and particular holdings undermine the notion that court reporters may demand a “missed fee” whenever someone obtains a copy of a transcript that can be traced back to an original transcript the reporter had made—and was paid for making—for someone else.
In broad terms, [the court reporter's] fee claim rests on the tacit premise that court reporters in some legal sense own the content of the transcripts they prepare, such that they are entitled to remuneration whenever a copy of a transcript is made (even if they played no role in making the copy). To accept this premise would effectively give court reporters a “copyright” in a mere transcription of others’ statements, contrary to black letter copyright law. See 2 William F. Patry, Patry on Copyright, Ch. 4 Noncopyrightable Material, § 4.88 (Updated Sept. 2008) (court reporters are not “authors of what they transcribe and therefore cannot be copyright owners of the transcript of court proceedings”).
And there is a line of cases holding that transcripts independently accessed (such as by simply requesting the case file from the court clerk) may be viewed and copied as an alternative to purchasing a copy from the court reporter. See Kinan v. City of Boston, 112 F.R.D. 206, 208 (D. Mass. 1986); Hawley v. Hall, 131 F.R.D. 578, 583 (D. Nev. 1990); C.P.C. P’ship Bardot Plastics, Inc. v. P.T.R., Inc., 96 F.R.D. 184, 185 (E.D. Pa. 1982); see also Stanley v. Henderson, 590 F.2d 752, 753 (8th Cir. 1979) (noting counsel may obtain copies of appeal transcript from clerk); Schroer v. United States, 250 F.R.D. 531, 535-37 (D. Colo. 2008) (rejecting, under post-2000 Rules (see supra note 1), party’s effort to require immediate filing of transcript with clerk to enable informal copying, not because copying is improper but because party failed to justify burdening the court with filing of as-yet-unused transcripts).