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denying photocopying expenses to defendant, stating that "[o]rdinarily . . . the copying costs that are taxed are . . . not the cost of copies of briefs and motion papers submitted to the Court. Thus, Local Rule 54.1(c) refers to copies of 'exhibits,' costs for which may be taxed under certain circumstances, and not to copies of briefs or motion papers. At least in this case, where the copying costs demanded are de minimis, there is no reason why this ordinary expense of litigation should be shifted to the losing party."
Summary of this case from Vuona v. Merrill Lynch & Co.Opinion
No. 03 Civ. 2778 (GEL).
June 30, 2005
OPINION AND ORDER
This case was tried to the Court without a jury on December 13, 2004, and judgment entered for defendant on January 4, 2005. Shortly thereafter, defendant's counsel served a bill of costs, to which plaintiff timely objected. However, since no party provided courtesy copies to the Court, which was not otherwise informed of the issue, the matter lay unattended for some time. The Court having discovered the existence of the dispute and reviewed the parties' submissions, the application for costs will be granted in part.
Plaintiff objects to the taxation of costs for a transcript of his own deposition. Under 28 U.S.C. § 1920(2), the Court may tax as costs "[f]ees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case." "The courts of appeals have consistently interpreted this statute to permit the taxation of deposition expenses, when necessarily incurred for use of the deposition in the case."Whitfield v. Scully, 241 F.3d 264, 270 (2d Cir. 2001). Plaintiff objects that the deposition transcript was not "extensively" used or relied on at trial. (Flamm Aff. ¶ 3.) But this is not the test. Under our Local Rule 54.1(c)(2), "the original transcript of a deposition, plus one copy, is taxable if the deposition was used or received in evidence at the trial, whether or not it was read in its entirety. Costs for depositions are also taxable if they were used by the court in ruling on a motion for summary judgment or other dispositive substantive motion." The award of such costs "against the losing party is the normal rule obtaining in civil litigation, not an exception." Whitfield, 241 F.3d at 270. Here, the deposition was used in connection with defendant's motion for summary judgment, which was granted in part. Accordingly, the deposition expense is without question appropriately taxable as a cost in favor of the prevailing party.
Plaintiff also object to defendant's demand for $44.00 in photocopying costs for copies of its summary judgment motion papers. 28 U.S.C. § 1920(4) permits the award of costs in connection with "copies of papers necessarily obtained for use in the case." "Photocopying costs may be recovered even though the underlying document was not admitted at trial." United States v. Merritt Meridian Construction Corp., 95 F.3d 153, 173 (2d Cir. 1996). Ordinarily, however, the copying costs that are taxed are those for copying documents that are reasonably contemplated to be used as evidence in the case, and not the cost of copies of briefs and motion papers submitted to the Court. Thus, Local Rule 54.1(c)(5) refers to copies of "exhibits," costs for which may be taxed under certain circumstances, and not to copies of briefs or motion papers. At least in this case, where the copying costs demanded are de minimis, there is no reason why this ordinary expense of litigation should be shifted to the losing party.
Accordingly, defendant's bill of costs is allowed as to the deposition transcript cost of $1,022.50, but denied as to the photocopying expense of $44.00. As this Order resolves the last remaining issue in the case, the Clerk is respectfully directed to mark the case closed.
SO ORDERED.