Opinion
CIVIL ACTION NO. 3:02-CV-1494-G
November 24, 2003
MEMORANDUM ORDER
Before the court is the motion for costs, filed September 16, 2003, of the defendant Trans Union, LLC ("Trans Union"). The motion arises from the court's judgment of July 17, 2003, wherein the court dismissed the federal claims of the plaintiff Maria B. Waggoner ("Waggoner") and ordered Waggoner to pay Trans Union its costs of court. Having reviewed the pertinent parts of the record, Trans Union's motion is, for the reasons that follow, granted in part and denied in part.
I. BACKGROUND
On July 15, 2002, Waggoner and First Stone Credit Counseling sued Trans Union for alleged violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681, et seq., and defamation. On April 4, 2003, Trans Union filed a motion for summary judgment. In a memorandum order dated July 17, 2003, this court granted Trans Union's motion for summary judgment on Waggoner's FCRA claims, and dismissed Waggoner's state law defamation claims without prejudice. See Waggoner v. Trans Union, LLC, No. 3:02-CV-1494-G, 2003 WL 22220668, at *1, *10 (N.D. Tex. Jul. 17, 2003). On the same day, the court issued a Judgment ordering Waggoner to pay Trans Union its costs of court.On September 16, 2003, Trans Union, as the prevailing party, filed the instant motion. See generally Trans Union LLC's Motion for Costs and Brief in Support ("Motion"). Trans Union claims recoverable costs in the amount of $7678.71. Id. at 3. Waggoner filed a response and objections on September 25, 2003. See Plaintiff Maria B. Waggoner's Response in Opposition to Trans Union, LLC's Motion for Costs and Brief in Support ("Response"). The question of the amount of costs to be awarded to Trans Union is now ripe for determination.
II. ANALYSIS
Trans Union seeks to recover costs, pursuant to 28 U.S.C. § 1920, in the amount of $7678.71. See Motion at 2-3. This total is comprised of amounts expended on fees for service of summons and subpoena, fees of the court reporter for transcripts necessarily obtained for use in the case, fees and disbursements for printing, and fees for copies of papers necessarily obtained for use in the case. See Bill of Costs [ attached to Motion as Exhibit B], located in Exhibit B at 11."[C]osts other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs." FED. R. CIV. P. 54(d)(1). These costs sought by Trans Union are recoverable exclusively under 28 U.S.C. § 1920, absent explicit statutory or contractual authorization to the contrary. Mota v. University of Texas Houston Health Science Center, 261 F.3d 512, 529 (5th Cir. 2001). Pursuant to § 1920, the court may tax as costs (1) fees of the clerk and marshal; (2) fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; (3) fees and disbursements for printing and witnesses; (4) fees for exemplification and copies of papers necessarily obtained for use in the case; (5) docket fees under 28 U.S.C. § 1923; and (6) compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under 28 U.S.C. § 1828. 28 U.S.C. § 1920.
The Fifth Circuit has also held that the party seeking costs bears the burden of supporting its request with evidence documenting the costs incurred and proof, when applicable, that a certain item was "necessarily obtained for use in the case." Fogleman v. ARAMCO (Arabian American Oil Company), 920 F.2d 278, 285-86 (5th Cir. 1991). This is a factual determination to be made by the district court and the Fifth Circuit accords district courts "great latitude" in making this determination. Id.
1. Subpoena Fees
Trans Union requests $368.57 in fees for service of summons and subpoena. See Bill of Costs, located in Exhibit B at 11; Chart Bl, located in Exhibit B at 12. As these costs are not disputed by Waggoner, and because they were reasonable and necessary to the case, the court finds that Trans Union is entitled to recover $368.57 in subpoena fees.2. Court Reporter and Videographer Fees
Trans Union requests $5,617.91 in court reporter and videographer fees. See Bill of Costs, located in Exhibit B at 11; Chart B2, located in Exhibit B at 17. Section 1920(2) specifically provides for charges of the court reporter "for all or any part of the stenographic transcript necessarily obtained for use in the case." The district court has broad discretion to allow such costs, see Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1049 (5th Cir. 1998), and the burden is on the losing party — here Waggoner — to show the impropriety of taxing a particular deposition as a cost. See Super Sack Manufacturing Corporation v. Chase Packaging Corporation, 37 U.S.P.Q.2d 1394, 1396-97 (N.D. Tex.).
Significantly for this case, a deposition that was not actually used in trial, and not introduced into evidence, may still be taxed as a cost, if at the time it was taken it could reasonably be expected that the deposition would be used for trial preparation rather than mere discovery. Fogleman, 920 F.2d at 285. Thus, the determination of necessity is an ex ante — not an ex post — analysis. See, e.g., id. at 285-86; Hudson v. Nabisco Brands, Inc., 758 F.2d 1237, 1243 (7th Cir. 1985) (finding that the determination of necessity must be made in light of facts known at time of deposition).
Waggoner objects to the court taxing the costs of her own deposition because it was an exploratory discovery deposition, only a small portion of which was used in Trans Union's motion for summary judgment. Response ¶ 2. Trans Union asserts, however, that the deposition of Waggoner was necessary to "understand fully the factual basis of [her] claims" and to "formulate [a] . . . defense [in] this case." Affidavit of Amanda Stamps Lewis in Support of Bill of Costs ("Affidavit") ¶ 3, attached to Motion as Exhibit A. Waggoner also objects to the court taxing the costs of Bruce J. Danielson ("Danielson")'s deposition because his testimony was easily impeachable, rendering it inadvisable to use him as a witness at trial. Response ¶ 2. Trans Union contends, on the other hand, that deposing Danielson was necessary because Waggoner "designated [him] as a critical fact witness . . . as well as an expert witness." Affidavit ¶ 4.
Waggoner cannot object to the court's taxing of these depositions as costs by positing that, in retrospect, the depositions were unneeded or less useful to a specific motion or to the litigation as a whole. If — in light of facts known at time of deposition and without regard to intervening developments that later render the deposition unneeded for further use, the deposition was necessarily obtained for use in the case — then the court may to award the costs of that deposition to the prevailing party. See Hudson, 758 F.2d at 1243 (citing Copper Liquor, Inc. v. Adolph Coors Company, 684 F.2d 1087, 1099 (5th Cir. 1982), reheard en banc on separate issue, 701 F.2d 542 (5th Cir. 1983) (per curiam)); see also Fogleman, 920 F.2d at 285-86. The court is satisfied, for the reasons stated by Trans Union, and given the nature of this litigation and the persons deposed, that the depositions of the plaintiff — Waggoner — and her own expert witness — Danielson — were necessarily taken for use in preparation for trial. The cost of those depositions are, therefore, taxable, regardless of the extent to which those depositions were later used.
In taxing these costs to Waggoner, however, the court must separate the cost of the original depositions of Waggoner and Danielson from the cost for copies of the depositions of Diane Terry ("Terry") and Mary Lane ("Lane"). Studiengesellschaft Kohle mbH v. Eastman Kodak Company, 713 F.2d 128, 133-34 (5th Cir. 1983). According to the Fifth Circuit, the cost of copies of depositions are "taxable only if the copies were necessarily obtained for use in the case." Id. Waggoner objects to the court taxing the costs of the copies of the Terry and Lane depositions, as they were not used in Trans Union's summary judgment motion. Response ¶ 2. Trans Union, however, asserts that it expected to use Terry's and Lane's testimony at trial to explain Trans Union's policies and procedures, as well as its handling of Waggoner's case. Affidavit ¶ 5. The court finds that these depositions were reasonably necessary to Trans Union's establishment of a defense in this case.
Waggoner argues that § 1920(2) precludes Trans Union, as the prevailing party, from recovering "unnecessary" videotaping costs. Response ¶ 2. While § 1920 permits the taxing as costs of court reporter fees for stenographic transcripts, it does not make explicit mention of costs associated with videotaping a deposition. Migis, 135 F.3d at 1049; Mota, 261 F.3d at 529-30. Consequently, the Fifth Circuit does not interpret § 1920(2) to include videotape depositions. Migis, 135 F.3d at 1049; Mota, 261 F.3d at 529; see also Datapoint Corporation v. Picturetel Corporation, No. 3:93-CV-2381-D, 1998 WL 401630, at *4 (N.D. Tex. Jul. 9, 1998) (Magistrate Judge Stickney), aff'd, 1998 WL 641807 (N.D. Tex. Sept. 11, 1998); Scribner v. Waffle House, Inc., No. 3:91-CV-2267-R, 1998 WL 47640, at *1 (N.D. Tex. Feb. 2, 1998). For this reason, the court will reduce Trans Union's Bill of Cost by $1554.40, the entire amount of fees sought by Trans Union for videotaped depositions.
Were this court not constrained by clear Fifth Circuit precedent on this issue, the court would accede to the predominant authority among the courts that "section 1920(2) implicitly permits taxation of the costs of video depositions." Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471, 1477 (10th Cir. 1997); accord Morrison v. Reichhold Chemicals, Inc., 97 F.3d 460, 464-65 (11th Cir. 1996); Cherry v. Champion International Corporation, 186 F.3d 442, 448-49 (4th Cir. 1999). This conclusion readily follows from Federal Rule of Civil Procedure 30(b)(2), which provides that deposition testimony may be recorded by alternative means, including "by sound, sound-and-visual, or stenographic means," and from public policy, which favors technology that saves time for litigants, witnesses, and the judiciary. See Tilton, 115 F.3d at 1477. But see Mota, 261 F.3d at 529.
Trans Union seeks $847.50 in videography costs from the Waggoner deposition, and $706.90 (equal to 11% of $695.00 (deposition 1/21/03), .26% of $400.00 (deposition 1/28/03), 100% of $620.00 (deposition 5/21/03), and 1.5% of $627.50 (deposition 6/04/03)) in videography costs from the Danielson depositions. See Chart B2, located in Exhibit B at 17.
Accordingly, the court finds that Trans Union is entitled to $3,984.60 in costs for court reporter fees for the depositions of Waggoner and Danielson, the copies of depositions of Terry and Lane, and the uncontested deposition on written questions of Citifinancial. Trans Union's videography fees are, however, not recoverable.
These costs includes fees from the following depositions: (1) Bruce Danielson $1709.10 (equal to 11% of $1586.00 (deposition 1/21/03), .26% of $702.00 (deposition 1/28/03), 100% of $1517.00 (deposition 5/21/03), and 1.5% of $1054.00 (deposition 6/04/03)); (2) Citifinancial $135.40; (3) Mary Lane $197.55; (4) Diane Terry $197.55; and (5) Maria Waggoner $1745.00. See Chart B2, located in Exhibit B at 17.
3. Photocopying Expenses
Trans Union requests the sum of $1,568.01 for printing/copies in this case. See Bill of Costs, located in Exhibit B at 11; Chart B3, located in Exhibit B at 33. Waggoner challenges the taxing of photocopy costs on the ground that the itemization or documentation attached to Trans Union's Bill of Costs is insufficient to demonstrate that the copies were necessary to the case. Response ¶ 3."Before [a] district court can tax costs for photocopies, it must find that the copies for which costs are sought were necessarily obtained for use in the litigation." Holmes v. Cessna Aircraft Company, 11 F.3d 63, 64 (5th Cir. 1994) (per curiam) (citing Studiengesellschaft, 713 F.2d at 133). The party seeking such costs must offer some proof of the necessity. Id. (citing Fogleman, 920 F.2d at 286). For instance, when a party's claims for photocopy costs are essentially undocumented, those claims must be disallowed. See Copper Liquor, 684 F.2d at 1098-99 (stating that the losing party "should not be tagged with either cost or expense bills that are horseback estimates."). Moreover, although § 1920 specifically provides for the taxation of printing expenses, it does not provide for taxing postage and courier costs. See, e.g., Super Sack, 37 U.S.P.Q.2d at 1397 (citing Loewen v. Turnipseed, 505 F. Supp. 512, 518 (N.D. Miss. 1980) (finding that expenses such as postage and mail services are "disallowed on the grounds that such expenses are generally considered overhead, or part of the cost of operating a law firm.")).
Trans Union seeks recovery for printing costs it incurred in filing documents with the court and in responding to Waggoner's discovery requests. Affidavit ¶¶ 9, 10; see also Chart B3, located in Exhibit B at 33; Exhibit B at 41-71. In accordance with Local Rules 5.1(a) and (b), the original and one copy of each pleading, motion, and other paper that the Federal Rules of Civil Procedure permit to be filed must be filed with the district clerk's office. Every pleading required to be served after the original complaint must also be served on each of the parties to the suit. See FED. R. CIV. P. 5(a). Moreover, under FED. R. Civ. P. 34 and 30(b)(5), parties are required to produce certain documents in response to discovery requests or subpoenas duces tecum. Based upon Trans Union's obligation under the Local Rules and Federal Rules of Civil Procedure, this court finds that the copies of the papers it filed with the court and the papers it produced during discovery were reasonably necessary for its defense and thus necessarily obtained for use in litigation. See Holmes, 11 F.3d at 64. Therefore, Trans Union may recover $1120.80 — the costs of its photocopied pleadings ($869.76) plus the cost of the papers it produced in response to Waggoner's discovery requests ($251.04).
Having reviewed a summary and description of the photocopies made by Trans Union in this case, see Chart B3, located in Exhibit B at 33; see also Exhibit B at 34-40, the court finds that they were necessarily obtained for use in the litigation. See Holmes, 11 F.3d at 64. Each separate receipt obtained by Trans Union contains a request for documents pertaining specifically to Maria Waggoner. See Exhibit B at 34-40. The photocopy costs related to health care providers Medical Center of Piano, Dr. Ewen Tseng, and Dr. Jeffrey Caruth were necessary to rebut Waggoner's claims of mental anguish. See id. at 33; Affidavit ¶ 8. The photocopy costs related to creditors CTX Mortgage Company, Sears Roebuck Company, Capital One Bank, and Homeside Lending were necessary to rebut Waggoner's claims for alleged violations of the FCRA. See Affidavit ¶ 7. Therefore, after subtracting postal charges and adjusting for one misstated expense, the court concludes that Trans Union may recover from Waggoner $320.20 in printing costs.
The following postage costs were subtracted from Trans Union's recovery: CTX Mortgage Company $10.00, Dr. Jeffrey Caruth $1.50, Capital One Bank $10.72, and Homeside Lending $9.02. See Exhibit B at 35, 38, 39, 40.
The receipt from Dr. Jeffrey Caruth shows that Trans Union paid $28.45 — not $124.22 as stated in Chart B3. See Exhibit B at 38.
4. Exemplification and Copies
Trans Union seeks reimbursement of $124.22 for a certified copy of Waggoner's bankruptcy file. Affidavit ¶ 7; see also Chart B4, located in Exhibit B at 72. According to Trans Union, this file was both "necessary" to the case and "used in [its] successful summary judgment" motion for authentication purposes. Affidavit ¶ 7. Waggoner objects to taxing costs for the file, arguing that incidental expenses, such as this one, are not recoverable. Response ¶ 5.
Exemplification and copies of papers necessarily obtained for use in case are allowable costs for taxation under 28 U.S.C. § 1920(4). Certified documents obtained by a party and used to authenticate or verify information contained in a motion are often necessary to validate information prepared for and presented to a court. In the case sub judice, obtaining a certified copy of Waggoner's bankruptcy file was necessary to authenticate the information presented in Trans Union's summary judgment motion. Therefore, after subtracting courier charges, the court concludes that Trans Union may recover $109.22 for a certified copy of this file.
Section 1920 does not provide for taxing courier costs. Super Sack, 37 U.S.P.Q.2d at 1397. Therefore, Trans Union's courier expense of $15.00 for Waggoner's bankruptcy file must be subtracted from its recovery. See Exhibit B at 73.
III. CONCLUSION
Therefore, having reviewed the motion and its attached bill of costs and having considered Waggoner's response and objections, the court hereby orders that Trans Union recover from Waggoner costs in the amount of $5903.39 as follows:
1. Fees in the amount of $368.57 for service of summons and subpoena;
2. Fees in the amount of $3,984.60 for the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
3. Fees in the amount of $1,441.00 for photocopying expenses;
4. Fees in the amount of $109.22 for exemplification and copies of papers necessarily obtained for use in the case.SO ORDERED.