Opinion
No. 01 C 6157
September 27, 2002
MEMORANDUM OPINION AND ORDER
The Chamberlain Group, Inc. ("Chamberlain") sued Interlogix, Inc. ("Interlogix") for patent infringement pursuant to 35 U.S.C. § 271 et seq. Specifically, Chamberlain claimed several Interlogix wireless security systems infringed Patent No. Re. 35,364 ("the "364 patent") and Patent No. Re. 36,703 ("the "703 patent"). Interlogix counterclaimed for a declaratory judgment of noninfringement, invalidity and unenforceability. The court granted Interlogix's motion for partial summary judgment on invalidity of the "703 patent. Chamberlain Group, Inc. v. Interlogix, Inc., 2002 WL 1263984 (N.D. Ill. June 3, 2002). Thereafter, the court granted Interlogix's motion for summary judgment on non-infringement of the "364 patent. Chamberlain Group, Inc. v. Interlogix, Inc., 2002 WL 1777280 (N.D. In. Aug. 1, 2002). Interlogix now seeks its costs pursuant to Federal Rule of Civil Procedure 54(d) and 28 U.S.C. § 1920.
DISCUSSION
I. Chamberlain's Request to Stay Taxation of Costs
In response, Chamberlain requests a stay pending appeal. Chamberlain fails to cite any authority for its request. Indeed, this court has denied similar requests. See, e.g., international Oil, Chemical Atomic Workers, Local 7-517 v. Uno-Ven Co., No. 97 C 2663, 1998 WL 895557, at *1 (ND. 111. Dec. Ill, 1998)(Lindberg, J); Ziemack v. Centel Corp., No. 92 C 3551, 1997 WL 97384, at * 1 (N.D. Ill. Feb. 27, 1 997) (Moran, J.); LeMoine v. Combined Communications Corp., No. 95 C 5881, 1996 WL 435115, at *1 (N.D. Ill. July 31, l996) (Conlon, J.). Absent any authority to the contrary, Chamberlain's request to stay taxation of costs is denied.
II. Interlogix's Bill of Costs
"[C]osts . . . shall be allowed as of course to the prevailing party unless the court otherwise directs[.]" Fed.R.Civ.P. 54(d). However, Rule 54(d) does not give a court "unrestrained discretion to tax costs to reimburse a winning litigant for every expense he has seen fit to incur . . . [I]tems proposed by winning parties as costs should always be given careful scrutiny." Farmer v. Arabian American Oil Co., 379 U.S. 227, 235 (1964). Recoverable costs are specified in 28 U.S.C. § 1920. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441 (1987). Recoverable costs include: (1) fees of the clerk and marshal; (2) fees for transcripts necessarily obtained for use in the case; (3) fees for printing and witnesses; (4) fees for copies of papers necessarily obtained for use in the case; (5) docket fees; and (6) compensation of court appointed experts and interpreters. 28 U.S.C. § 1920. In its bill of costs, Interlogix seeks costs incurred for depositions, witness attendance and copying. Chamberlain objects, claiming Interlogix's costs are excessive.
A. Deposition Costs
Interlogix first seeks $17,166.75 for costs incurred in obtaining the depositions of 23 witnesses. In evaluating the bill of costs, the court must determine whether: (1) the expenses are allowable under § 1920; and (2) the expenses are reasonable and necessary. Deimer v. Cincinnati Sub-Zero Products, Inc., 58 F.3d 341, 345 (7th Cir. 1995). Where an award of deposition costs is appropriate, the Judicial Conference has established $5.00 as the rate per page for a daily transcript, $4.00 for an expedited transcript, $3.00 for an original transcript and $.75 for a transcript copy. Cengr v. Fusibond Piping Systems, Inc., 135 F.3d 445, 456 (7th Cir. 1998), citing VI Judicial Conference of the United States, Guide to Judiciary Policies and Process, Court Reporters Manual, ch. 20, Pt. 20.3 (1998).
1. Deposition Transcripts and Videotapes
Section 1920(2) authorizes the taxing of costs for deposition transcripts "necessarily obtained for use in the case." 28 U.S.C. § 1920(2). Costs for videotaping a deposition may be awarded in lieu of costs for a stenographic transcript. Barber v. Ruth, 7 F.3d 636, 645 (7th Cir. 1993). To be recoverable, the deposition must be reasonably necessary to the case at the time it was taken. Cengr, 135 F.3d at 455. Chamberlain does not challenge Interlogix's need for the deposition transcripts and videotapes outlined in its bill of costs. Rather, Chamberlain argues the costs incurred by Interlogix for daily and expedited transcripts were unnecessary and unreasonable.
Interlogix requests the following costs for deposition transcripts:
Cost Deponent Date Delivery Pages Per Page Total Dr. Bruce Eisenstein 05/08/02 Daily Unknown $5.00 Unknown Bradford Ferris 05/03/02 Expedited 167 $4.00 $668.00 John Flannery 06/05/02 Expedited 215 $4.00 $860.00 Timothy Levestik 04/11/02 Daily 158 $5.00 $790.00 Daniel McGavock 05/07/02 Expedited 218 $4.00 $872.50 Marvin Moody, Jr. 05/16/02 Expedited 164 $4.00 $656.00 V. Thomas Rhyne, III 05/10/02 Daily 370 $5.00 $1,850.00 Kenneth Samples 04/24/02 Expedited 196 $4.00 $784.00 Roger S. Smith 05/07/02 Expedited 239 $4.00 $956.00 MarkTone-Day 1 04/10/02 Daily 182 $5.00 $910.00 MarkTone-Day 2 05/01/02 Daily 118 $5.00 $590.00 Mark Tone — Day 3 06/25/02 Expedited 163 $4.00 $652.00 ColinWillmott 04/09/02 Daily 228 $5.00 $1,140.00 John Bergmann 04/23/02 Copy 120 $0.75 $90.00 Robert Brunius 05/15/02 Copy 120 $0.75 $90.00 Charles Durant 05/24/02 Copy 101 $0.75 $75.75 Jeffrey Frey Unknown Expedited Unknown $5.00 Unknown Charles Kuyk, III 05/15/02 Copy 102 $0.75 $76.50 Larry S. Nixon Unknown Expedited Unknown $5.00 Unknown Duane Paulson 05/04/02 Copy 101 $0.75 $75.75 Nate Scarpelli 05/Ill/02 Copy 62 $0.75 $46.50 Scott Schulz 04/30/02 Copy 149 $0.75 $111.75 Total $11,294.75 As Chamberlain points out, Interlogix fails to justify costs for daily and expedited transcripts. According to Interlogix, daily and expedited transcripts "were warranted by the fact that the depositions were completed in a short amount of time and discovery closed on the day that summary judgments were due." Interlogix's blanket assertion is insufficient to justify 15 daily and expedited transcripts, especially when it used only two of these transcripts in support of its motions for summary judgment. Indeed, three daily transcripts were ordered over one month prior to the dispositive motion deadline of May 15, 2002. Absent any explanation as to why daily and expedited transcripts were necessary, Interlogix is only entitled to the $3.00 per page rate for original deposition transcripts. See Alsaras v. Dominick's Finer Foods, Inc., 99 C 4226, 2001 WL 1117275, at *2 (N.D. Ill. Sept. 19, 2001). In sum, Interlogix is entitled to the following deposition transcript costs: Cost Deponent Pages Per Page Total Bradford Ferris 167 $3.00 $501.00 John Flannery 215 $3.00 $645.00 Timothy Levestik 158 $3.00 $474.00 Daniel McGavock 218 $3.00 $654.00 Marvin Moody, Jr. 164 $4.00 $492.00 V. Thomas Rhyne, III 370 $3.00 $1,110.00 Kenneth Samples 196 $3.00 $588.00 Roger S. Smith 239 $3.00 $717.00 Cost Deponent Pages Per Page Total Mark Tone-Day 1 182 $3.00 $546.00 Mark Tone — Day 2 118 $3.00 $354.00 Mark Tone — Day 3 163 $3.00 $489.00 Cohn Willmott 228 $3.00 $684.00 John Bergmann 120 $0.75 $90.00 Robert Brunius 120 $0.75 $90.00 Charles Durant 101 $0.75 $75.75 Charles Kuyk, ILL 102 $0.75 $76.50 Duane Paulson 101 $0.75 $75.75 Nate Scarpelli 62 $0.75 $46.50 Scott Schulz 149 $0.75 $111.75 Robert Baker Video Video $385.00 Jeffrey Vincent Video Video $458.50 John Berman — Day 2 Video Video $280.00 Jerry 1-lausman Video Video $162.00 Total $9,105.75 2. Court Reporter Attendance FeesInterlogix seeks to recover $2,592.50 ($170.00 (Ferris) + $212.50 (Flannery) + $170.00 (Levstik) + $297.50 (McGavock) + $191.25 (Moody) + $340.00 (Rhyne) + $191.25 (Samples) + $255.00 (Smith) + $531.25 (Tone) + $233.75 (Willmott)) in court reporter attendance fees. Interlogix may recover court reporter attendance fees as part of the reasonable and necessary costs in obtaining a deposition transcript under § 1920(2). See Finchum v. Ford Motor Co., 57 F.3d 526, 534 (7th Cir. 1995) (court may award court reporter attendance fees as taxable costs). Contrary to Chamberlain's position, Ochana v. Flores, 206 F. Supp.2d 941 (N.D. Ill. 2002) and Antonson v. United Armored Serv., Inc., No. 00 C 4095, 2002 WL 908424 (N.D. Ill. May 6, 2002) did not hold otherwise. Therefore, the court awards Interlogix $2,592.50 for court reporter attendance fees.
B. Witness Attendance Costs
Interlogix seeks costs associated with obtaining the attendance of seven deposition witnesses, including $357.00 in witness fees and $681.00 in subpoena service fees. Chamberlain challenges only Interlogix' costs for service of subpoenas.
Section 1920(3) authorizes witness fees. Although Chamberlain does not object to Interlogix' witness fees, payment to a deponent may not exceed the statutory limit of $40.00 plus reasonable travel expenses and subsistence charges. 28 U.S.C. § 1821(b), (c). Interlogix fails to offer any evidence of the witnesses' travel expenses or subsistence charges. Therefore, recovery for witness fees is limited to $40.00 per witness or $280.00.
Section 1920(1) authorizes fees for service of subpoenas. Collins v. Gorman, 96 F.3d 1057, 1059 (7th Cir. 1996). As Chamberlain points out, fees cannot exceed amounts charged by the U.S. Marshal Service. Id. at 1060. The U.S. Marshal Service charges $45.00 per hour plus $0.365 per mile. The invoices submitted by Interlogix do not indicate how long service took or where service was effectuated. Therefore, the court awards only the $45.00 minimum charged by the U.S. Marshal's Service for subpoena service ($315.00).
C. Copying Costs
Interlogix seeks $17,030.11 for copying costs for three categories of documents: (1) $12,625.83 for documents produced during discovery, including $9,018.45 (60,123 pages x $0.15) for photocopying and $3,607.38 (60,123 x $0.06) for Bates labeling; (2) $3,672.68 (24,484.50 pages x $0.15) for three copies of filed pleadings; and (3) $731.70 (4,878 pages x $0.15) for deposition exhibits. Section 1920(4) authorizes the taxing of costs for copies "necessarily obtained for use in the case." 28 U.S.C. § 1920(4). "Included in the category of costs "reasonably necessary for use in the case' are copies attributable to discovery and the court's copies of pleadings, motions and memoranda; however, extra copies for the convenience of the attorneys are not necessary and are not taxed as costs." Baxter Int'l, Inc. v. McGaw, Inc., No. 95 C 2723, 1998 WL 102668, at * 1 (N.D.Ill. March 3, 1998). Based on this standard, Interlogix' copies were necessarily obtained for use in the case. Nevertheless, Chamberlain objects to costs associated with each document category, including the copying charge, as excessive.
1. Discovery Documents
Chamberlain first argues costs associated with document production should not be allowed because the "parties agreed that each side should produce and pay for its own document production to avoid the cost of preliminary inspection." Contrary to Chamberlain's position, the parties' agreement does not eliminate Chamberlain's responsibility to pay Interlogix's costs. Absent the agreement, Chamberlain would be liable for Interlogix' costs in obtaining its documents after paying to obtain Interlogix' documents. In both cases, Chamberlain is solely responsible for costs associated with the parties' document production.
Chamberlain argues that much of the photocopied material was irrelevant. Chamberlain's claim lacks merit. Chamberlain assumed the risk that irrelevant material would be included in document production by not conducting a preliminary inspection of the documents. Therefore, Interlogix is entitled to recover costs associated with its document production, including photocopying at the reasonable rate of $0.15 per page. See Eastern Trading Co. v. Refco, Inc., No. 97 C 6815, 1999 WL 529569, at *5 (N.D.Ill. July 20, 1999)("Judges of this court have found $.15 per page reasonable").
2. Pleadings
Chamberlain argues costs for copying Interlogix' pleadings should not be allowed because Interlogix failed to provide sufficient documentation. Although Interlogix "is not required to submit a bill of costs containing a description so detailed as to make it impossible economically to recover photocopying costs," it "is required to provide the best breakdown obtainable from retained records." Northbrook Excess and Surplus Ins. Co. v. Procter Gamble Co., 924 F.2d 633, 643 (7th Cir. 1991). Interlogix does not provide any documentation to support its estimate of 24, 484 1/2 copies. Nor does it explain how it arrived at this number. "In the absence of a more detailed affidavit or some other reliable verification that the copying costs were necessary for presenting evidence to this court," the court declines to award Interlogix costs for copying its pleadings. See Mortell v. MacNeal Health Care Servs. Corp., No. 99 C 4531, 2000 WL 804666, at *3 (N.D. Ill. June 21, 2000).
3. Deposition Exhibits
Chamberlain argues costs for copying deposition exhibits should not be allowed because Interlogix already possessed these documents. See Cengr, 135 F.3d at 456 (costs of deposition exhibit copies not allowed where defendant already had copies of exhibits). In Cengr, the Seventh Circuit disallowed costs for an additional copy of deposition exhibits provided by the court reporter as part of the deposition transcripts. Id In contrast, Interlogix copied documents for use during depositions that Chamberlain concedes were necessary to presentation of this case to the court. Interlogix is awarded $731.70 for copying documents for use as deposition exhibits.
CONCLUSION
The bill of costs is granted in part. Interlogix is awarded $11,698.25 in deposition costs, $595.00 in witness attendance costs and $13,357.53 in copying costs.