There are instances where a deposition may be taken in a case. Where one of the parties to the action requests a person or a party be deposed in an action or proceeding, that party requests a deposition, and the court either grants or denies the request. In a case where the government or the United States is a party and a federal attorney request a person or party be deposed, the federal attorney or DOJ employee ordinarily obtains proper financial authorization or procurement approval before selecting and using a deposition vendor.
Generally, federal agencies are required to follow procurement and appropriations laws before obligating government funds. Under federal fiscal law, government employees ordinarily cannot bind the United States to payment unless they have delegated contracting or obligating authority. A federal or assistant U. S. attorney has authority to select a deposition vendor; however, they do not have authority to obligate funds without approval from the Department of Justice. When a federal defendant or a Department of Justice component initiates a deposition in a civil case, the payment process usually follows standard federal litigation procurement and financial procedures.
The general process is:
1. Deposition Is Authorized by the Assigned Attorney
The Assistant United States Attorney (AUSA) or DOJ trial attorney handling the case determines that a deposition is necessary under the Federal Rules of Civil Procedure.
2. Selection of a Court Reporting Vendor
The DOJ office typically uses:
• an approved litigation-support vendor,
• or another authorized procurement vehicle.
The attorney or litigation support staff coordinates scheduling with the vendor.
3. Procurement / Financial Authorization
Before payment, the DOJ component generally creates or approves:
• a purchase request,
• funding authorization,
• matter or case code,
• obligation entry in the DOJ financial system, and
• internal approval from authorized personnel.
These actions are often processed through DOJ financial systems managed by the United States Department of Justice, not the court, and may involve the Justice Management Division.
4. Deposition Services Are Performed
The vendor provides:
• the court reporter,
• transcript preparation,
• or other servces
5. Invoice Submission
After the deposition, the vendor submits an invoice to the DOJ or U.S. Attorney’s Office. The invoice commonly includes:
• case caption,
• date of deposition,
• transcript charges,
• or other fees and,
• billing identifiers.
6. Certification and Approval
DOJ personnel review the invoice to confirm:
• the services were authorized,
• the deposition occurred,
• the charges are proper, and
• the services were received.
An AUSA, contracting official, or authorized certifying official may approve the invoice for payment.
7. Payment is then made through DOJ Financial Systems
Payment is then processed through DOJ financial systems like the UFMS (Unified Financial Management System). Funds are paid directly to the vendor from appropriated government funds.
8. Possible Later Taxation of Costs
If the United States prevails, certain deposition costs may later be sought from the opposing party under:
o 28 U.S.C. § 1920 and
o Federal Rule of Civil Procedure 54(d).
The government may file a bill of costs with the Clerk of Court seeking reimbursement of allowable deposition expenses.
There is a difference between the court ordering a deposition for its use, and a party to the action requesting a deposition and the court granting or denying the request. In a case where the United States procured the service, it is responsible for paying the vendor and later seeking reimbursement from the party taxed for costs, or the opposing party. The government cannot seek reimbursement for costs that were not actually incurred. Plainly, this means if the government has not paid the vendor, it has not incurred any costs. An entry must not only show an invoice; it must show the vendor was paid or the government incurred costs. Where the DOJ has not paid the vendor, cost have not been “actually and necessarily incurred.”
1. Wahl v. Carrier Mfg. Co., 511 2d F. 209 (7th Cir. 1975).