Opinion
Case No. 16-cv-02401 (SRN/HB)
04-05-2021
Grupo Petrotemex, S.A. de C.V., and DAK Americas LLC, Plaintiffs, v. Polymetrix AG, Defendant.
Alexander Englehart, Eric W. Schweibenz, J. Derek Mason, and John F. Presper, Oblon, McClelland, Maier & Neustadt, LLP, 1940 Duke Street, Alexandria, VA 22314; and Margaret Rudolph, Norton Rose Fulbright US LLP, 60 South Sixth Street, Suite 3100, Minneapolis, MN 55402, for Plaintiffs. Bernard E. Nodzon, Jr. and Lauren Marie Williams Steinhauser, Faegre Drinker Biddle & Reath LLP, 90 South Seventh Street, Suite 2200, Minneapolis, MN 55402; Igor Shoiket, Stephen H. Youtsey, and Todd A. Noah, Dergosits & Noah LLP, One Embarcadero Center, Suite 350, San Francisco, CA 94111, for Defendant.
ORDER
Alexander Englehart, Eric W. Schweibenz, J. Derek Mason, and John F. Presper, Oblon, McClelland, Maier & Neustadt, LLP, 1940 Duke Street, Alexandria, VA 22314; and Margaret Rudolph, Norton Rose Fulbright US LLP, 60 South Sixth Street, Suite 3100, Minneapolis, MN 55402, for Plaintiffs. Bernard E. Nodzon, Jr. and Lauren Marie Williams Steinhauser, Faegre Drinker Biddle & Reath LLP, 90 South Seventh Street, Suite 2200, Minneapolis, MN 55402; Igor Shoiket, Stephen H. Youtsey, and Todd A. Noah, Dergosits & Noah LLP, One Embarcadero Center, Suite 350, San Francisco, CA 94111, for Defendant. SUSAN RICHARD NELSON, United States District Judge
This matter is before the Court on the Objection to Bill of Costs [Doc. No. 864] filed by Plaintiffs Grupo Petrotemex, S.A. de C.V. and DAK Americas, LLC (collectively, "GPT/DAK"). Based on a review of the files, submissions, and proceedings herein, and for the reasons below, the Court OVERRULES the Objection in part, SUSTAINS the Objection in part, and GRANTS Defendant Polymetrix AG $42,846.60 in costs.
I. DISCUSSION
On February 4, 2021, this Court granted Polymetrix's Motion for Summary Judgment and entered judgment in its favor. (Mem. Op. & Order [Doc. No. 859]; Judgment [Doc. No. 860].) Subsequently, Polymetrix submitted a Bill of Costs [Doc. No. 864] requesting the Clerk of Court to tax $300 in Fees of the Clerk, and $45,899.70 in transcription costs for various hearings and depositions conducted during this litigation. GPT/DAK objected to the claim for transcription costs, on three bases. (See Obj. to Bill of Costs [Doc. No. 866].) First, GPT/DAK argue that the claimed transcription costs include non-taxable costs like delivery charges and credit-card processing fees. Second, GPT/DAK assert that Polymetrix included fees for expedited processing of the transcripts, without an explanation for why expedited processing was necessary. Finally, GPT/DAK protested that the costs presented for the transcription of several depositions were not itemized, and argued that these costs should either be wholly excluded or reduced by 30% to account for the likelihood that non-taxable costs were included in the figure. In total, GPT/DAK request that the Court deny $34,936.75 or, alternatively, $12,104.43 of Polymetrix's claimed transcription costs.
In response to GPT/DAK's Objection, Polymetrix conceded that its Bill of Costs includes $2,055.91 in non-taxable delivery, credit-card processing, and real-time transcription fees. (Response to Obj. to Bill of Costs [Doc. No. 867], at 2.) In addition, Polymetrix explained the need for its expedited processing costs, and submitted invoices itemizing the transcription costs for several depositions. (See Noah Decl. [Doc. No. 868].)
Federal Rule of Civil Procedure 54(d) permits a district court to tax costs in favor of a prevailing party, and 28 U.S.C. § 1920 defines which expenses incurred during litigation may be taxed pursuant to Rule 54(d). "Under § 1920, a judge or court clerk 'may tax as costs' fees of the clerk and marshal, fees for printed or electronically recorded transcripts necessarily obtained for use in the case, fees and disbursements for printing and witnesses, fees for copies of necessary papers, docket fees, and compensation of court appointed experts and interpreters." Stanley v. Cottrell, Inc., 784 F.3d 454, 464 (8th Cir. 2015) (citing 28 U.S.C. §§ 1920(1)-(6)). The Court has "substantial discretion in awarding costs to a prevailing party." Zotos v. Lindbergh Sch. Dist., 121 F.3d 356, 363 (8th Cir. 1997) (quoting Richmond v. Southwire Co., 980 F.2d 518, 520 (8th Cir. 1992)).
Where Polymetrix's claimed transcription costs include a surcharge for expedited processing, Polymetrix must adequately explain the need for expedition. See Delgado v. Hajicek, No. CIV.07-2186 RHK/RLE, 2009 WL 2366558, at *3 (D. Minn. July 30, 2009) (citations omitted) ("Fees for expedited transcripts are not taxable absent some explanation why expedition was necessary."); D. Minn. Bill of Costs Guide 6 (2015), https://www.mnd.uscourts.gov/sites/mnd/files/forms/Bill-of-Costs-Guide.pdf (noting that the "[c]osts of expedited transcripts produced solely for the convenience of counsel" are not taxable, and "[t]he requesting party must provide an explanation as to why it was necessary to have any transcript produced in an expedited manner."). In addition, many of the invoices submitted by Polymetrix include costs for rough ASCII transcripts. "ASCII fees associated with the quick delivery of a rough transcript . . . are generally 'incurred only for the convenience of counsel and thus are not properly awarded,'" but "ASCII fees can be collected when incurred out of necessity." Sorin Grp. USA, Inc. v. St. Jude Med., S.C., Inc., No. CV 14-4023 (JRT/HB), 2017 WL 3503360, at *7 (D. Minn. Aug. 15, 2017) (citations omitted). If the Court finds that Polymetrix has not adequately explained why the use of expedited transcription services or a rough ASCII transcript was necessary—rather than merely convenient—the Court will deny those costs. And where the invoice does not clearly identify the portion of the transcription cost attributable to non-taxable expedited processing, the Court will exercise its discretion to reduce the amount by 20%. Cf. Delgado, 2009 WL 2366558, at *3 ("Because the Court cannot discern the amount of the fee charged for expedited transcripts, it will exercise its discretion and reduce the amount sought by 20%.").
Because Polymetrix has submitted invoices for the previously non-itemized transcription costs, the Court need not consider whether to wholly exclude or reduce those costs, as urged by GPT/DAK. In the table that follows, the Court addresses each item of claimed costs disputed by the parties. The table is organized according to the exhibit identifier used by the parties for the cost's supporting documentation.
| DisputedTranscript | Analysis | Deductionfrom ClaimedCosts |
|---|---|---|
| Hendley Deposition(Exhibit D) | Polymetrix admits that $55 must be deductedfor non-taxable shipping and handling costs.The Court finds that no additional deductionsare necessary. | $55 |
| Lund Deposition(Exhibit E) | Polymetrix admits that $55 must be deductedfor non-taxable shipping and handling costs.The Court finds that no additional deductionsare necessary. | $55 |
| DisputedTranscript | Analysis | Deductionfrom ClaimedCosts |
|---|---|---|
| June 4, 2018Healing(Exhibit F) | Polymetrix claims $110.40 in transcriptioncosts, which includes expedited processing.Polymetrix explains that expeditedprocessing was "required to review Court'sbench rulings on 90-day jurisdictionaldiscovery and supplemental briefing onmotion to dismiss." (Noah Decl. at 2.) TheCourt finds that Polymetrix has adequatelyjustified the need for expedited processing ofthis transcript. | $0 |
| July 19, 2018Healing(Exhibit G) | Polymetrix claims $111.60 in transcriptioncosts, which includes expedited processing.Polymetrix explains that expedited processingwas "required to review Court's rulings onIDR." (Id.) The Court finds that Polymetrix hasadequately justified the need for expeditedprocessing of this transcript. | $0 |
| August 14, 2018Healing(Exhibit H) | Polymetrix claims $369.75 in transcriptioncosts, which includes expedited processing.Polymetrix explains that expedited processingwas required "to review Court's bench rulinggoverning the August 21-22, 2018depositions." (Id.) Given the proximity betweenthe hearing and depositions, the Court finds thatPolymetrix has adequately justified the need forexpedited processing of this transcript. | $0 |
| January 8, 2019Healing(Exhibit J) | Polymetrix claims $796.65 in transcriptioncosts, which includes expedited processing.Polymetrix explains that expedited processingwas required "for preparation for January 22,2019 evidentiary hearing on Defendant'smotion to dismiss." (Id.) The Court finds thatPolymetrix has adequately justified the need forexpedited processing of this transcript. | $0 |
| January 9. 2020Healing(Exhibit K) | Polymetrix claims $181.80 in transcriptioncosts, which includes expedited processing.Polymetrix explains that expedited processingwas required "to review Court's bench rulingon Plaintiffs' motion to compel JDA." (Id.) TheCourt finds that Polymetrix has adequately | $0 |
| DisputedTranscript | Analysis | Deductionfrom ClaimedCosts |
|---|---|---|
| justified the need for expedited processing ofthis transcript. | ||
| July 27, 2020Healing(Exhibit L) | Polymetrix claims $214.20 in transcriptioncosts, which includes expedited processing.Polymetrix explains that expedited processingwas required "to review Court's bench rulingon Plaintiffs' motion re sufficiency of RFAresponses and discussion regarding protocol forupcoming remote video depositions inSwitzerland beginning on August 3, 2020."(Id.) The Court finds that Polymetrix hasadequately justified the need for expeditedprocessing of this transcript. | $0 |
| November 5, 2020Healing(Exhibit M) | Polymetrix claims $189.60 in transcriptioncosts, including daily transcript services.Polymetrix explains that expedited processingwas required "to review Court's bench rulingduring summary judgment heating regardingparties' joint submission on Plaintiffs'contributory infringement claims." (Id.) TheCourt finds that Polymetrix has adequatelyjustified the need for expedited processing ofthis transcript. | $0 |
| Cluistel Deposition(Exhibit N) | Polymetrix claims $2,362.80 in transcriptioncosts, including expedited processing and arough transcript, for Christel's August 21, 2018deposition. Polymetrix explains that expeditedprocessing was required "to meet Court'sSeptember 4, 2018 deadline for parties' jointsupplemental briefing schedule." (Id. at 3.) TheCourt finds that Polymetrix has adequatelyjustified the need for expedited processing ofthis transcript, and declines to deduct theexpedited and rough transcript costs. However,Polymetrix concedes that $55 in delivery feesmust be excluded. | $55 |
| Cluistel DepositionVideo(Exhibit O) | Polymetrix concedes that $40 in delivery feesmust be excluded. (Id. at 4.) | $40 |
| DisputedTranscript | Analysis | Deductionfrom ClaimedCosts |
|---|---|---|
| Müller Deposition(Exhibit P) | Polymetrix claims $1,327.90 in transcriptioncosts, including expedited processing and arough transcript, for Müller's August 22, 2018deposition. Polymetrix explains that expeditedprocessing was required "to meet Court'sSeptember 4, 2018 deadline for parties' jointsupplemental briefing schedule." (Id.) TheCourt finds that Polymetrix has adequatelyjustified the need for expedited processing ofthis transcript, and declines to deduct theexpedited and rough transcript costs. However,Polymetrix concedes that $55 in delivery feesmust be excluded. | $55 |
| Müller DepositionVideo(Exhibit Q) | Polymetrix concedes that $40 in delivery feesmust be excluded. (Id.) | $40 |
| Awasthi Deposition(Exhibit R) | Polymetrix claims $1,127.78 in transcriptioncosts for Awasthi's July 22, 2020 deposition.Polymetrix concedes that $65.11 must bededucted for non-taxable real-time transcriptand credit-card processing fees. (Id.) However,Polymetrix's Bill of Costs already excludes thecredit-card processing fee, and therefore onlythe real-time transcript fee ($20) must bededucted. | $20 |
| Awasthi Deposition(Exhibit T) | Polymetrix claims $2,564.99 in transcriptioncosts for Awasthi's September 29, 2020deposition. Polymetrix concedes that $118.65must be deducted for non-taxable real-timetranscript and credit-card processing fees. (Id.) | $118.65 |
| Rule 30(b)(6)Deposition(Exhibit U) | Polymetrix claims $2,807.00 in transcriptioncosts, including expedited processing and arough transcript, for this August 3, 2020deposition. Polymetrix explains that expeditedprocessing was required "because of Plaintiff'sallegations that the Rule 30(b)(6) witnesseswere not adequately prepared and Defendant'scounsel made in appropriate [sic] objections.Defendant's counsel needed to review thetranscripts expeditiously in view of Plaintiffs | $237.27 |
| DisputedTranscript | Analysis | Deductionfrom ClaimedCosts |
|---|---|---|
| imminent motion to compel filed September 8,2020." (Id. at 5.) The Court finds thatPolymetrix has adequately justified the need forexpedited processing of this transcript, anddeclines to deduct the expedited and roughtranscript costs. But Polymetrix concedes that$237.27 in real-time transcript, credit-cardprocessing, and delivery fees must be excluded.(Id.) | ||
| Rule 30(b)(6)Deposition(Exhibit W) | Polymetrix claims $3,324.43 in transcriptioncosts, including expedited processing and arough transcript, for this August 4, 2020deposition. Polymetrix offers the sameexplanation for expedited processing of thistranscript as the August 3, 2020 transcript. (Id.)The Court finds that Polymetrix has adequatelyjustified the need for expedited processing ofthis transcript, and declines to deduct theexpedited and rough transcript costs. ButPolymetrix concedes that $277.98 in real-timetranscript, credit-card processing, and deliveryfees must be excluded. (Id.) | $277.98 |
| Rule 30(b)(6)/PolyakovDepositions(Exhibit Y) | Polymetrix claims $3,290.76 in transcriptioncosts, including expedited processing and arough transcript, for this August 5, 2020deposition. Polymetrix offers the sameexplanation for expedited processing of thistranscript as the August 3, 2020 transcript. (Id.at 6.) The Court finds that Polymetrix hasadequately justified the need for expeditedprocessing of this transcript, and declines todeduct the expedited and rough transcript costs.Polymetrix concedes that $211.63 in real-timetranscript, credit-card processing, and deliveryfees must be excluded. (Id.) However, the Billof Costs already excludes the $131.63 credit-card processing fee, and therefore only the real-time transcript ($80) and delivery ($85) feesmust be deducted. | $165 |
| DisputedTranscript | Analysis | Deductionfrom ClaimedCosts |
|---|---|---|
| Polyakov/ChristelDepositions(Exhibit AA) | Polymetrix claims $3,055.84 in transcriptioncosts, including expedited processing and arough transcript, for this August 6, 2020deposition. Polymetrix offers the sameexplanation for expedited processing of thistranscript as the August 3, 2020 transcript. (Id.)The Court finds that Polymetrix has adequatelyjustified the need for expedited processing ofthis transcript, and declines to deduct theexpedited and rough transcript costs.Polymetrix concedes that $247.23 in real-timetranscript, credit-card processing, and deliveryfees must be excluded. (Id.) However, the Billof Costs already excludes the $122.23 credit-card processing fee, and therefore only the real-time transcript ($40) and delivery ($85) feesmust be deducted. | $125 |
| Christel Deposition(Exhibit CC) | Polymetrix claims $2,795.63 in transcriptioncosts, including expedited processing and arough transcript, for this August 7, 2020deposition. Polymetrix offers the sameexplanation for expedited processing of thistranscript as the August 3, 2020 transcript. (Id.at 7.) The Court finds that Polymetrix hasadequately justified the need for expeditedprocessing of this transcript, and declines todeduct the expedited and rough transcript costs.Polymetrix concedes that $216.83 in real-timetranscript, credit-card processing, and deliveryfees must be excluded. (Id.) However, the Billof Costs already excludes the $111.83 credit-card processing fee, and therefore only the real-time transcript ($20) and delivery ($85) feesmust be deducted. | $105 |
| Müller Deposition(Exhibit EE) | Polymetrix claims $3,192.89 in transcriptioncosts, including expedited processing and arough transcript, for this August 10, 2020deposition. Polymetrix offers the sameexplanation for expedited processing of thistranscript as the August 3, 2020 transcript. (Id.) | $125 |
| DisputedTranscript | Analysis | Deductionfrom ClaimedCosts |
|---|---|---|
| The Court finds that Polymetrix has adequatelyjustified the need for expedited processing ofthis transcript, and declines to deduct theexpedited and rough transcript costs.Polymetrix concedes that $212.72 in real-timetranscript, credit-card processing, and deliveryfees must be excluded. (Id.) However, the Billof Costs already excludes the $127.72 credit-card processing fee, and therefore only the real-time transcript ($40) and delivery ($85) feesmust be deducted. | ||
| Müller Deposition(Exhibit GG) | Polymetrix claims $1,587.28 in transcriptioncosts, including expedited processing and arough transcript, for this August 11, 2020deposition. Polymetrix offers the sameexplanation for expedited processing of thistranscript as the August 3, 2020 transcript. (Id.at 8.) The Court finds that Polymetrix hasadequately justified the need for expeditedprocessing of this transcript, and declines todeduct the expedited and rough transcript costs.Polymetrix concedes that $168.49 in real-timetranscript, credit-card processing, and deliveryfees must be excluded. (Id.) However, the Billof Costs already excludes the $63.49 credit-card processing fee, and therefore only the real-time transcript ($20) and delivery ($85) feesmust be deducted. | $105 |
| Morawski/SiodaDepositions(Exhibit II) | Polymetrix claims $8,871 in transcription costsfor these depositions. GPT/DAK object that theinvoice submitted in support of this cost is notitemized. The original invoice contained twoline-items: One listing a $5,216.65 fee forMorawski's deposition, and another listing a$3,654.35 fee for Sioda's deposition. (Bill ofCosts, Ex. II.) Polymetrix submitted anadditional "itemized" invoice, which breakseach fee into an "original transcript" item, anda "videotape recording" item. (Noah Decl., Ex.II.) This supplemental invoice is no more | $1,774.20 |
Cf. Delgado v. Hajicek, No. 07-2186 (RHK/RLE), 2009 WL 2366558, at *3 (D. Minn. July 30, 2009) ("Because the Court cannot discern the amount of the fee charged for expedited transcripts, it will exercise its discretion and reduce the amount sought by 20%."); Smith v. Toyota Motor Corp., No. 2:16CV24 ERW, 2018 U.S. Dist. LEXIS 121484, at *9 (E.D. Mo. July 20, 2018) (rejecting the defendant's claim for transcription costs where the invoice was not itemized, but giving the defendant seven days to submit more detailed invoices).
In sum, the Court finds that Polymetrix's Bill of Costs must be reduced by $3,353.10. Accordingly, Polymetrix is entitled to $42,846.60 in costs.
II. CONCLUSION
Based on the submissions and the entire file and proceedings herein, IT IS HEREBY ORDERED that:
1. Plaintiffs' Objection to Bill of Costs [Doc. No. 864] is OVERRULED in part and SUSTAINED in part; and
2. The Court GRANTS Defendant $42,846.60 in costs.
IT IS SO ORDERED.
Dated: April 5, 2021
s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge