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Quigley v. Esquire Deposition Services, LLC

409 N.J. Super. 69, 875 A.2d 1042 (App. Div. 2009)

DEPOSITION TRANSCRIPTS — Depositions taken in connection with federal litigation are not subject to New Jersey’s statutes or administrative regulations because those statutes and regulations are pre-empted by the Federal Rules of Civil Procedure.

A deposition was taken during the course of federal litigation. The party’s adversary contracted with a court reporter to transcribe the proceeding. Since the Federal Rules of Civil Procedure (FRCP) do not require a reporter to furnish a copy to non-ordering parties, the “other party” ordered a transcript. The reporter charged the other party for its services. The other party sued the reporter, claiming the amount charged was unconscionable and fraudulent in violation of the Consumer Fraud Act (CFA) and that the reporter had violated the New Jersey statute and administrative regulations governing shorthand reporting.

The lower court dismissed all claims. It ruled that the statute and administrative regulations requiring a deposition to be transcribed by a certified shorthand reporter and the regulations prescribing formatting standards for deposition transcripts do not apply to depositions taken in connection with federal litigation because they are pre-empted by the FRCP. The party requesting the deposition appealed.

In the appeal, the Appellate Division upheld the lower court’s conclusion that the Federal Rules, which allow a non-certified reporter to transcribe a deposition, pre-empted the New Jersey statute and regulations governing shorthand reporting. Therefore, it affirmed the dismissal of the claims related to such issues. Nevertheless, it held that the CFA claims could stand independently of those statutes and regulations. It believed the FRCP was not intended to pre-empt application of state consumer fraud statutes as to the fraudulent or deceptive business practices of a shorthand reporting company. Accordingly, it reversed the lower court’s holding on this matter and granted the appellant leave to file an amended complaint that could be read to state such claims.

Upon remand, the appellant filed an amended complaint. The appellant charged that in ordering copies of the transcripts, he had a reasonable expectation that the reporter would follow generally accepted transcribing practices, and that the reporter would not take unreasonable advantage of him by inflating the font size, margins, and spacing beyond generally accepted practices in order to force him to pay for more pages than would normally be required. The lower court granted a motion to dismiss the amended complaint because the complaint, as amended, was dependent on the statute and regulations that the Appellate Division found to be pre-empted. In addition, it ruled that any allegations that the copying charges were excessive and unreasonable were also pre-empted. The appellant appealed again.

This time, the Appellate Division affirmed. First, the Court found that in adopting the FRCP, the Supreme Court intended to deal comprehensively with the taking of depositions in connection with federal litigation and left no room for the states to supplement that federal law. Consequently, those claims that applied to a deposition taken in connection with federal litigation were pre-empted by the FRCP. Second, it also dismissed the CFA claims, ruling that it would not review the amended complaint liberally as it had previously done since it had already given the appellant the opportunity to file an amended complaint that could stand independently of the statute and regulations governing shorthand reporting. Moreover, it assumed that, at this stage of the litigation, the appellant had alleged every fact he reasonably believed could support a CFA claim so it refused to grant further leave to amend. It held that the amended complaint did not indicate any source for his alleged “reasonable expectations” concerning the formatting other than the pre-empted regulations and statute. It viewed the appellant’s attempt to resurrect the complaint as merely a backdoor attempt to revive a pre-empted claim. Third, the Court dismissed appellant’s claim that the charge for each transcript page was far in excess of the actual cost. The Court ruled that, unlike prior decisions relied upon by the appellant, the complaint did not allege that the reporter made misrepresentations to him or engaged in other deceptive practices in connection with the sale of the copies of his deposition transcripts. In fact, the Court pointed out that the appellant did not allege that he had any communication with the reporter concerning price of the transcripts before receiving them together with the invoices. It also ruled the appellant had failed to cite authority for his argument that a CFA claim may be stated solely by an allegation that the price was excessive, without consideration of the manner in which it was marketed. The Court believed that sellers of goods and services may charge whatever the market will bear so long as they do not engage in deceptive or other unfair sales practices.

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