Opinion
4:01cv023
April 19, 2004
MEMORANDUM OPINION AND ORDER
On this day the Court considered Broadcom's Objections to Microtune's Bill of Costs. After examining Broadcom's Objections, Microtune's Reply, Microtune's Bill of Costs, Supplemental Bill of Costs and Second Supplemental Bill of Costs, and all other submissions of the parties, the Court is of the opinion that Microtune, as the prevailing party, is entitled to recover from Broadcom certain costs pursuant to Rule 54(d) of the Federal Rules of Civil Procedure and 28 U.S.C. § 1920, as hereinafter set forth:
Fees of the Clerk: $0.00
Microtune includes in its Bill of Costs $100.00 in filing fees for motions filed pro hac vice. These fees are not contemplated by § 1920 and are an "expense of counsel for the privilege of practicing law in this Court." Romero v. United States, 865 F. Supp. 585, 594 (E.D. Mo. 1994). Accordingly, fees for motions filed pro hac vice should not be taxed as costs.
Fees for Service of Summons and Subpoena: $0.00
Microtune also seeks to recover costs for fees paid to private process servers in the amount of $1,281.10. Section 1920(1) provides for the taxing of fees of the marshal as costs. In the absence of special circumstances, fees paid to a private process server should not be taxed as costs. Cypress-Fairbanks Indep. Sch. Dist. v. Michael, 118 F.3d 245, 257 (5th Cir. 1997). No special circumstances existed in this case, and Microtune's fees incurred for the use of private process servers should not be taxed as costs.
Fees of the Court Reporter: $50,241.85
1) Fees of the court reporter for depositions necessarily obtained for use in the case: $36,247.90
This amount reflects the amount originally requested by Microtune for deposition transcript services ($57,241.18), less shipping and delivery charges and administrative fees ($383.75), less amounts for extra copies ($326.40), less charges for ASCII, condensed and rough disks ($591.35), less charges for Real Time transcription ($106.50), less charges for unnecessary expedited delivery ($6,221.75), less charges incurred in connection with video depositions ($12,559.39), less amounts for untimely payments ($634.04), and less amounts disallowed for Microtune's failure to show necessity ($810.31).
Microtune includes in its Bill of Costs amounts for shipping, delivery and postage services. These amounts are not taxable as costs under the statute. See Duckworth v. Whisenant, 97 F.3d 1393, 1399 (11th Cir. 1996) (stating that postage, among other items, is "clearly nonrecoverable" under 28 U.S.C. § 1920); El-Fadl v. Central Bank of Jordan, 163 F.R.D. 389, 391 (D.D.C. 1995) (recognizing that the "overwhelming weight of authority have declined to award costs for courier services, postage, telephone or fax charges"). To the extent that such charges are identifiable, they should not be taxed as costs.
Microtune also included in its Bill of Costs amounts for special services related to depositions. It is well established in the Fifth Circuit that "the cost of copies of deposition transcripts is taxable only if the copies were necessary for use in the case." J.T. Gibbons v. Crawford Fitting Co., 760 F.2d 613, 615 (5th Cir. 1985). The Court is of the opinion that the original and one copy of each deposition transcript per party in its standard form is necessary. Any additional copies should not be taxed as costs. The Court disallows as costs any amounts for ASCII, rough disk, condensed, and Real Time transcription services. These additional services were obtained only for the convenience of Microtune and should not be taxed as costs.
Broadcom also objects to the inclusion of costs for the expedited delivery of deposition transcripts. Microtune has failed to show that expedited copies of deposition transcripts were necessary in this case. Accordingly, the Court disallows additional charges for the expedited delivery of deposition transcripts.
Microtune incurred significant charges in videotaping and reproducing numerous depositions, and Broadcom objects to Microtune's inclusion of these costs. "There is no provision for videotapes of depositions" in the statute; therefore, these amounts are not taxable as costs. Mota v. Univ. of Tex. Houston Health Scis. Ctr., 261 F.3d 512, 529-30 (5th Cir. 2001); Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1049 (5th Cir. 1998). Further, Microtune has failed to show that such videotaped depositions were necessary in this case. All charges associated with video-taped depositions should not be taxed as costs.
Microtune also included in its Bill of Costs amounts charged by vendors for untimely payment for deposition services. While the original and one copy of each deposition transcript should be taxed as a cost, Broadcom should not be required to pay additional amounts for Microtune's failure to timely pay its bills. Any late fees incurred by Microtune should not be taxed as costs.
Broadcom's argument that many of the deposition transcripts were not necessary in this case is not convincing. If at the time the deposition was taken, Microtune could have reasonably expected to use the deposition for trial preparation, it is properly included in the Bill of Costs. Folgeman v. ARAMCO, 920 F.2d 278, 285 (5th Cir. 1991). This case involved complex intellectual property issues, and a great deal of discovery was necessary to properly litigate these issues. However, the Court is unable to determine the amount of necessary costs incurred by Microtune in the deposition of Will Frost ($639.71) and a charge incurred for services relating to Robert Rotzoll ($170.60). Microtune submitted a disbursement record from its attorney for the services related to Mr., Frost, and the Court is unable to determine the amount attributable to necessary costs from this record. Accordingly, the total cost of this deposition should be disallowed. The original and one copy of the remainder of the deposition transcripts were necessarily obtained for use in the case and should be taxed as costs.
Microtune has agreed to withdraw the amount related to Rotzoll.
2) Fees of the court reporter for parts of the trial and hearing transcripts: $13,993.95
This amount reflects the cost of the Markman Hearing transcript ($1,625.00), the Pre-Trial Hearing transcript ($319.03), and daily copy of the Trial transcript (312,049.92). A transcript of the Markman Hearing held before this Court on March 14-15, 2002 was necessary for further preparation and discovery in this case; therefore, Broadcom's objection to the cost of the transcript for the Markman hearing is overruled. The Court made numerous oral rulings in the Final Pretrial Conference, and therefore, is of the opinion that the transcript of the hearing was necessary for trial preparation. Accordingly, Broadcom's objection to the transcript cost for the Final Pretrial Conference on February 21, 2003, is overruled.
The Court, however, finds that none of the other costs claimed for hearing transcripts were necessary in this case. Further, the transcript of the jury verdict was not necessarily obtained for use in this case, but was obtained only for the convenience of Microtune. The costs of the unspecified "Hearing Transcipts" ($997.00), the Hearing Transcript from April 7, 2003 ($368.45) and the transcript of the jury verdict ($79.56) should not be taxed against Broadcom.
Microtune also included half (1/2) of the cost of the daily copy of the trial transcript in its Bill of Costs. The Fifth Circuit has allowed the daily copy of the trial transcript to be taxed as a cost when the district court found it was necessary and not just for convenience. Fogleman v. Aramco, 920 F.2d 278, 286 (5th Cir. 1991). The cost of the daily transcript has been disallowed when it was requested only by the defendant, was not agreed to by the plaintiff, and the court found it was only for the convenience of the defendant and not indispensable. In re Nissan Litigation, 577 F.2d 910, 918 (5th Cir. 1998). The Court finds that the daily copy of the trial transcript was necessary in this case. The technology at issue was sufficiently complex to require the daily copy, and both parties requested the daily copy. Microtune and Broadcom split the cost of the daily copy; therefore, only half (1/2) the cost of the daily copy of the trial transcript ($12,049.92) should be taxed as a cost.
Fees for Witnesses: $4230.89
Microtune submitted $549, 317.90 in costs for expert witness fees and expenses for the following: Bernard Lechler ($61,920.30), Albert Kimball (129,455.86), Michael J. Callahan ($229,228.00), Ted Harston ($79, 408.55), Scott Hakala, Ph.D. (49,215.19), Jeff Hevley ($45.00), and Albert Fasulo ($45.00).
The Court is not impressed with this submission and considers it a lack of candor on the part of Microtune in light of clear statutory, United States Supreme Court, and Fifth Circuit law.
Title 28 U.S.C. § 1920(3) provides that "[f]ees and disbursements for printing and witnesses" may be taxed as costs. The witness fee is defined in 28 U.S.C. § 1821:
(a)(1) Except as otherwise provided by law, a witness in attendance at any court of the United States, . . . or before any person authorized to take his deposition pursuant to any rule or order of court of the United States, shall be paid fees and allowances provided by this section.
(b) A witness shall be paid an attendance fee of $40 per day for each day's attendance. A witness shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of attendance at the beginning and end of such attendance.
The statute further limits witness expenses that can be taxed as costs. A witness traveling by common carrier must utilize the most economical rate available and provide a receipt or other evidence of actual cost. A witness traveling by privately owned vehicle will be reimbursed for travel in accordance with the mileage allowance prescribed by the Administrator of General Services. A witness will be reimbursed for road tolls, taxicab fares and parking between places of lodging and carrier terminals and shall be paid a subsistence allowance, prescribed by the Administrator of General Services, when an overnight stay is required at the place of attendance. 28 U.S.C. § 1821 (c) and (d).
In affirming the Fifth Circuit, the United States Supreme Court found that Congress had specifically provided for the amount of fees to be taxable as witness fees and that "[u]nder these provisions, additional amounts paid as compensation, or fees, to expert witnesses cannot be allowed or taxed as costs in cases in federal courts." Crawford Fitting Co. v. J.T. Gibbons, Inc., 107 S.Ct. 2494, 2498 (1987), superseded by statute on other grounds, 42.U.S.C. § 1988(c) (1991) (citation omitted). Further, the Court held that "absent explicit statutory or contractual authorization for the taxation of expenses of a litigant's witness as costs, federal courts are bound by the limitations set out in 28 U.S.C. § 1821 and § 1920." Id. at 2499.
The Court extensively reviewed Microtune's Bill of Costs and supporting documentation, and after proper application of 28 U.S.C. § 1821 and 1920, the following witness fees and expenses should be awarded as costs:
In determining the amounts for witness fees and expenses, the Court relied on the contents of Microtune's Bill of Costs. In the event that the reasonableness or accuracy of an expense could not be ascertained from Microtune's supporting documentation, the Court disallowed the cost of that item.
Bernard Lechner: $1,409.30
This amount includes: witness fees for the day preceding his testimony at the Markman Hearing and the two days of the Markman Hearing ($120.00); airfare for which Microtune has provided documentation, that is a one-way fare from Newark to Dallas ($833.50); rental car for three days ($213.33); gasoline for rental car ($13.50); train to airport ($7.80); lodging expense for night preceding Markman Hearing and night during Markman Hearing ($169.98); meals for 3/13/02-3/15/02 ($49.69); and road toll ($1.50). Mr. Lechner's cab fare incurred upon his return from a business trip to London should not be taxed as a cost.
Albert Kimball: $923.75
This amount includes: one day witness fee for deposition testimony in Austin ($40.00); witness fees for eleven days of necessary attendance at trial, including travel days ($440.00); mileage allowance for travel to Sherman for trial ($262.08); and meals ($181.67). Broadcom correctly points out that a receipt for Mr. Kimball's travel to Austin is not provided as mandated by the statute. Accordingly, the $346.31 submitted for Mr. Kimball's airfare should not be taxed as a cost.
Michael J. Callahan: $1,743.39
This amount includes: witness fees for travel to and from Austin and one day of deposition testimony ($120.00); mileage allowance from residence to airport ($84.32); airfare ($868.50); rental car ($211.79); parking ($26.00); meals ($32.78); and witness fees for ten days of attendance at trial ($400.00). Mr. Callahan did not submit any documentation for travel or subsistence expenses during trial.
The Court was unable to ascertain exactly how many days Mr. Callahan's attendance at trial was necessary; however, Broadcom conceded that Mr. Callahan was entitled to have witness fees for ten days of trial attendance taxed as costs.
Ted Harston: $0.00
The Court was unable to determine from Microtune's Bill of Costs whether Mr. Harston actually testified at a deposition or at trial; therefore, no witness fees or expenses for Mr. Harston should be taxed as costs.
Scott Hakala, Ph.D.: $154.45
This amount includes: witness fees for travel and deposition testimony ($40.00) and rental car expense ($114.45), which was not objected to by Broadcom. Microtune did not produce sufficient documentation to support the taxing of any other items as costs.
Jeff Hevley and Albert Fasulo: $0.00
Mr. Hevley and Mr. Fasulo did not testify at trial. The Court was unable to determine from Microtune's Bill of Costs whether Mr. Hevley and/or Mr. Fasulo actually testified at a deposition; therefore, no witness fees or expenses for Mr. Hevley and Mr. Fasulo should be taxed as costs.Fees for Exemplifications and Copies $1,250.00 Microtune also includes in its Bill of Costs fees for exemplifications and copies in the amount of $386,393.75. Section 1920(4) provides that "[f]ees for exemplification and copies of papers necessarily obtained for use in the case . . ." may be taxed as costs. First, Microtune submitted invoices for exemplification and copy services provided by Optipat, Inc. and TK Associates, which obtained patent applications and histories from the U.S. Patent and Trademark Office on behalf of Microtune. The Court finds that the copies provided by Optipat, Inc. were necessary to this litigation, and the charge for Optipat, Inc.'s services less charges for shipping and handling ($1,250.00) should be taxed as a cost. However, Microtune failed to submit invoices for the services provided by TK Associates. As a result, the Court was unable to determine what amounts were necessary in this case. Microtune's counsel's disbursement sheets are insufficient to show the reasonableness of the charge. Accordingly, charges for exemplification and copies provided by TK Associates should be disallowed.
Microtune also seeks to tax as costs charges for in-house exemplification and copies ($82,183.13) and charges from the following providers: Whitmont Legal Copying ($62,293.93); IKON ($74,318.97); The Exhibit Company ($1105.00); The Medleh Group ($2,369.12); Legal Arts Multimedia ($148,879.93); and Local Counsel Copying Charges ($11,979.37). The party seeking to tax these items as costs must provide the court with sufficient information to demonstrate that these items were necessarily obtained for use in the case. Holmes v, Cessna Aircraft Co., 11 F.3d 63, 64 (5th Cir. 1994); Fogleman v, ARAMCO, 920 F.2d 278, 286 (5th Cir. 1991). While the prevailing party is not required to identify each copy made in the litigation, some demonstration of necessity is required. Fogleman, 920 F.2d at 286.
In support of its claimed cost for exemplification and copies, Microtune submits numerous invoices and copies of accounting records. However, these invoices do not demonstrate any categories of documents, so that the Court may determine which copies were necessary and which were not. The Court is unable to determine whether these copies were necessarily obtained for use in the case. Microtune has had ample opportunity to appropriately categorize these items. Microtune has failed to meet its burden of necessity for all exemplification and copies except as to those provided by Optipat, Inc. The Court disallows all amounts for items for which Microtune has not demonstrated necessity. Interstate Contracting Corp. v. City of Dallas, 2002 WL 236676 *5 (N.D. Tex. 2002). Only fees for services provided by Optipat, Inc. should be taxed as costs.
Compensation of special interpretation services: $0.00
Microtune did not seek prior approval from the Court for any special interpretation services. Further, Microtune has failed to demonstrate that this interpretation was necessary for this litigation. Accordingly, the cost of an interpretation service should not be taxed against Broadcom.
Other costs: $0.00
Microtune also includes $122,643.44 in other costs in its Bill of Costs. This amount reflects fees for the services of The Data Company for digitizing documents, equipment and technical assistance at trial, and for other services used by Microtune to develop trial exhibits. The Court did not give pretrial authorization for these elaborate exhibits, and therefore, the entire amount requested by Microtune for these services ($122,643.44) should be disallowed. See Studiengesellschaft Kohle v. Eastman Kodak, 713 F.2d 128, 133 (5th Cir. 1983) (holding that the costs for charts, models and photographs may be taxed as a cost only if the court gives the parties pretrial authorization; see also J.T. Gibbons v. Crawford Fitting Co., 760 F.2d 613, 615 (5th Cir. 1985) (recognizing that expensive technology should be approved or requested by the court prior to trial in order to qualify as a taxable cost). These excessive amounts requested by Microtune as other costs are unjustified, unnecessary and only served as a convenience to Microtune. Accordingly, the amount of $122,643.44 in other costs should not be taxed as a cost.
CONCLUSION
For the foregoing reasons, the Court finds the total amount Microtune is entitled to recover on its Bill of Costs as a prevailing party is $55,722.74.
It is so ORDERED.