Opinion
No. CIV-02-0528-HE.
February 22, 2005
ORDER
Now before the Court are plaintiff's motions for review of the Court Clerk's determination as to costs and for award of expert witness fees, to which defendants have responded. The Court, having considered the submissions of the parties, now GRANTS in part and DENIES in part Champagne's motion for review of costs and GRANTS Champagne's motion as to expert fees.
DISCUSSION
I. The Court's Review of the Costs Awarded by the Court Clerk.
The litigants' dispute centers on what fees may be taxed as costs under 28 U.S.C. § 1920. Champagne timely filed its objections, Fed.R.Civ.P. 54(d)(1); accordingly, the Court reviews de novo the Court Clerk's award of costs. Farmer v. Arabian Am. Oil Co., 379 U.S. 227, 233 (1964).
Fed.R.Civ.P. 54 establishes a rebuttable presumption that defendants, as prevailing parties, will be awarded costs.Zeran v. Diamand Broad., Inc., 203 F.3d 714, 722 (10th Cir. 2000). The controlling statute, 28 U.S.C. § 1920, identifies those costs which are recoverable:
"Costs Other than Attorneys' Fees. Except with express provision therefore is made either in a statute of the United States or in these rules, costs 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).
A judge or clerk of any court of the United States may tax as costs the following:
(1) Fees of the clerk and marshall;
(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; . . .
A bill of costs shall be filed in the case and, upon allowance, included in the judgement or decree.
Champagne objects to the Court Clerk's award of costs in three areas: deposition fees, fees for exemplification and copying of papers, and fees of the clerk.
A. Defendants' Deposition Fees.
Champagne objects to the deposition fees awarded by the Court Clerk on two grounds. First, it argues certain depositions taken by defendants were not necessarily obtained. Second, it argues the evidence offered as to particular services is insufficient for various reasons.
The Court concludes all forty-eight of the depositions involved here were necessarily obtained. Plaintiff's concede that as to the bulk of them. Thirty-six of the depositions were initiated by plaintiff. The litigants cited to over forty of them. All forty-eight deponents were listed as potential witnesses in the pretrial report.
Champagne argues that the depositions of John and Jerry Shipman were not necessarily obtained because the Shipmans were not key witnesses and their depositions were not used during the summary disposition of Champagne's action. However, for purposes of § 1920, there is no requirement that a witness be "key" or that the deposition testimony actually be used. "[I]t is ordinarily best to judge reasonable necessity under § 1920 in the light of the facts known to the parties at the time the expenses were incurred." Callicrate v. Farmland Indus., Inc., 139 F.3d 1336, 1340 (10th Cir. 1998) (discussing in detail the standards of § 1920 and applying them to § 1919). Here, at the time defendants took the depositions of John and Jerry Shipman, they were partial, but active, owners of Champagne who may have had knowledge relevant to the determination of defendants' liability and Champagne's damages. Under the circumstances present here, the Court concludes it was reasonable for defendants to take the Shipmans' deposition and that such deposition costs are recoverable.
Use of a deposition is, no doubt, the most common indicator that it was necessarily obtained. Such use is not, however, essential.
The Court concludes that all forty-eight depositions were necessarily obtained under § 1920(2).
Champagne also argues that defendants' documentation was insufficient. Defendants bear the burden of establishing the costs they seek under § 1920. Allison v. Bank One-Denver, 289 F.3d 1223, 1248 (10th Cir. 2002). Here, review of defendants' deposition invoices shows that many lack line-item detail and give only a grand total, that the amounts submitted as to the same deposition vary from defendant to defendant, and that the nature and extent of services rendered varied from defendant to defendant. The Court is disinclined to attempt to resolve each of the many questions raised by these circumstances. Rather, it concludes the most appropriate action is to clarify the standards the Court views as applicable here, then afford the parties a further opportunity to resolve the specific disputes or issues.
Defendants may recover the necessary costs of the deposition itself, whether recorded stenographically or non-stenographically, and the cost of one copy in any format.See Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471, 1476-79 (10th Cir. 1997). The Court concludes that the following deposition fees, if incurred by a particular defendant, are both necessary and recoverable under § 1920(2):
a. The per-page rate for the original deposition;
b. The per-page rate for one hard copy of the deposition, including exhibits;
c. The hourly charge for a video deposition;
d. The cost of one copy of a video deposition in any format, but only one format;
e. Any standard delivery fees for a deposition (not rush or expedited);
f. Any mandatory administrative or other fees charged for the deposition.
Any additional non-basic court reporting services or fees are not recoverable. Counsel for the parties are directed to meet in person not later than March 10, 2005, to make a serious, good faith, and, if necessary, prolonged, effort to resolve these issues in light of the standards set out in this order. Champagne is directed to file an agreed order reflecting the parties agreement, if agreement is obtained, not later than March 20, 2005. If disputes remain, the parties are directed to file supplemental briefs addressing any specific objections still then in issue by March 20, 2005.
Non-basic services and fees include, but are not limited to, real time charges, rough draft charges, same-day services, indexing, provision of copies in multiple formats, and video editing charges.
B. Defendants' Fees for Exemplification and Copies of Papers.
Champagne raises two objections to the Court Clerk's award of outside copying and imaging fees. First, it argues that, due to the lack of invoice detail, defendants failed to prove that the outside copying and imaging fees were necessarily obtained. Second, it argues the imaging of documents and trial exhibits previously copied is duplicative.
Consistent with the above discussion, the Court rejects the suggestion that a copy must have been actually used in connection with the summary judgment motions to be "necessarily obtained." Particularly where, as here, summary judgment was entered on the eve of trial, a considerably broader scope of copying is plainly necessary to prepare the case.
The scope of copying for which recovery is permitted is not, of course, unlimited. The copy must be reasonably necessary for preparation of the case. The cost of copies generated merely for the convenience of the lawyers is not recoverable. The determination of what copies are reasonably necessary could, however, swiftly deteriorate into a process that costs more to implement than it's worth. Recognizing that reality, the Court concludes the rule of thumb employed here by the Clerk — permitting recovery of copying costs contracted to an outside vendor, while denying recovery for internally generated copies — is reasonable under circumstances of this case. The Court also concludes the cost of imaging documents produced during discovery is a proper item of recoverable costs. Particularly in a case such as this one, where voluminous documents are necessarily examined and considered for use as possible exhibits at trial, the costs of digital imaging should be deemed "necessarily incurred."
C. Fees of the Clerk.
Champagne objects to the Court Clerk's award of pro hac vice fees and defendant Ryerson Tull, Inc.'s subpoena fee as not necessarily obtained. First, the "necessarily obtained" standard does not apply to fees of the clerk and marshal. § 1920(1). Second, Champagne compelled defendants to defend themselves in Oklahoma by selecting this forum. The Court concludes the pro hac vice fees are properly recoverable under § 1920(1). Davis v. Puritan-Bennett Corp., 923 F. Supp. 179, 181 (D.Kan. 1996). Accordingly, the Court AFFIRMS the Court Clerk's award of pro hac vice and subpoena fees.
II. Champagne's Motion for Expert Fees for Time Spent Responding to Discovery.
Champagne also moves the Court, pursuant to Fed.R.Civ.P. 26(b)(4)(c), to award its costs for time spent by its experts in attending their depositions conducted by the defendants. None of the defendants have objected to Champagne's motion (Defs.' Resps., Dkt. No. 347, at 1 n. 1; Dkt. No. 352, at 1 n. 1; Dkt. No. 349, at 1 n. 1; Dkt. No. 351, at 1 n. 1; Dkt. No. 348, at 1 n. 1). Absent objection by any defendant, the Court concludes the fees sought are reasonable and that no manifest injustice will result from requiring defendants to pay the fees. Fed.R.Civ.P. 26(b)(4)(c).
"Unless manifest injustice would result, (I) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under this subdivision. . . ." Fed.R.Civ.P. 26(b)(4)(C).
Jorgensen failed to respond or otherwise object to Champagne's motion; therefore, the Court deems the motion confessed. LCvR7.2(e).
CONCLUSION
Champagne's motion to review Court Clerk's awards of costs to defendants (Dkt. No. 345) is GRANTED in part and DENIED in part as set forth above. Additionally, Champagne's motion for expert fees for time spent responding to discovery (Dkt. No. 346) is GRANTED. An appropriate judgment for costs will be entered following the parties' further conference and submissions as described above.
If the parties' further conference results in agreement, the parties are directed to submit an agreed proposed order/judgment, reflecting the netting out of the expert fees.
IT IS SO ORDERED.