Opinion
Civil Action No 399-CV-0982-M
February 22, 2002
AMENDED MEMORANDUM ORDER AND OPINION
On October 16, 2001, Plaintiff submitted its Bill of Costs in the amount of $264,242.27. On October 26, 2001, Defendant filed its Objections to the Bill of Costs. Having considered Defendant's Objections, Plaintiff's Reply thereto, a Supplemental Objection filed by Defendant to the Bill of Costs on December 4, 2001, and 28 U.S.C. § 1821 and 1920, the Court makes the following findings:
1. Recovery of fees paid to the clerk for institution of suit ($282.50)
Mark V contends that Auto Wax should be denied these fees because Auto Wax does not include proof of payment of the fees. Auto Wax responds that "[i]t is readily apparent that a filing fee was paid in this matter, since the case proceeded." However, Auto Wax can only demonstrate that it paid the $150 filing fee; the docket sheet for this case provides no proof as to payment of the other $132.50 claimed, and Auto Wax provides no explanation in its Reply as to the reason for the additional amount. Thus, Auto Wax should only be allowed to recover $150. The additional $132.50 claimed should be deducted from the Bill of Costs.
2. Costs of Plaintiff's private process server ($246)
Mark V argues that the costs of a private process server are not recoverable. The case law supports Defendant's contention. Cypress-Fairbanks Ind. Sch. Dist. v. Michael F., 118 F.3d 245 (5th Cir. 1997) ("[Defendant] properly objected to the $137.80 cost attributable to the school district's use of a private process server to serve both them and their attorney despite their counsel's having agreed to accept service on their behalf and not having objected to the use of service by mail. As there was nothing exceptional about the parties or the nature of this case, the district court should have denied these unnecessary private service costs."); McCoy v. Hernandez, No. ___, 1999 WL 38161, at *3 (N.D. Tex. Jan. 15, 1999) (Boyle, Mag. J.) ("Defendants seek $55.00 for service of a subpoena upon a witness by a private process server. Plaintiff objects to this request[,] asserting that such costs are taxable only when the U.S. Marshal serves process. The Court agrees. There is no authority supporting the reimbursement for a private process server."). Plaintiff cites no authority to the contrary. Although Auto Wax argues that a private process server was necessary because Mark V is a California entity with no agent for service of process in Texas, Auto Wax has not demonstrated that it was unable to have the Federal Marshal effect service of process, or that service could not be effected by mail. Therefore, Auto Wax may not recover the $246 claimed for the private process server.
Auto Wax requests that, if the Court declines to award the private process server fees, it instead award the amount that would have been charged by a Marshal for such service. However, Auto Wax provides no proof of what such a fee would have been. Without any supporting documentation as to the Marshal's fee for service of process, the Court finds that it should not allow Plaintiff to recover any amount for a process server. Therefore, the Court orders that the $246 Auto Wax claims for its private process server costs be deducted from the Bill of Costs.
3. Costs for transcripts ($28,850.28)
Mark V first objects that Auto Wax has not demonstrated that the transcripts for which Auto Wax seeks reimbursement were necessary for trial preparation, which is a prerequisite to the awarding of such fees under 28 U.S.C. § 1920. It also complains that Auto Wax cannot recover the fees for copies of transcripts (as opposed to the originals) absent a specific showing of necessity. Furthermore, Defendant objects that Auto Wax cannot receive reimbursement for the costs of video depositions or video technician fees.
Although Auto Wax itemized the transcript costs, it did a poor job of it; Auto Wax only listed the date and number of the invoice, not the person who was deposed, or whether the invoice was for the original transcript or a copy, or whether the invoice was for a video deposition. Thus, before Auto Wax can recover any amount for transcripts, it must submit a more detailed summary of its transcript costs that lists (a) the precise nature of the cost ( i.e., original transcript of a deposition, copy of a transcript of a deposition, charge for the videotaping of a video deposition or for a copy of the video deposition, or trial transcript (copy or original)), (b) the name of the person deposed, (c) how the transcripts/videotapes were used in preparation for or at trial, and (d) the page number corresponding to the copy of the invoice submitted with the Bill of Costs.
As for whether Auto Wax may have video deposition costs taxed against Defendant, the Fifth Circuit has explained that video deposition costs cannot be recovered. In Migis v. Pearle Vision, Inc., 135 F.3d 1041 (5th Cir. 1998), the Fifth Circuit found that a district court did not abuse its discretion in denying video deposition costs, stating:
[a]s to deposition fees, 28 U.S.C. § 1920 (2) only allows for the recovery of"[f]ees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case." There is no provision for videotapes of depositions. Even if the statute can be interpreted to include such copies, [a party must show] that the videotape of her own deposition, in addition to the transcript, was "necessarily obtained for use in the case."Id. at 1049. Following this instruction, another Judge within this District has found that "the Fifth Circuit and the District Courts in the Northern District of Texas do not interpret Section 1920(2) to include videotape depositions." Datapoint Corp. v. Picturetel Corp., No. 3:93-CV-2381-D, 1998 WL 401630, at *4 (N.D. Tex. July 9, 1998) (Stickney, Mag. J.); see also Scribner v. Waffle House, Inc., No.___, 1998 WL 47640 (N.D. Tex. Feb. 2, 1998) (Buchmeyer, J.) ("[V]ideo expenses may not be recovered unless the Court has given prior approval."). Thus, the Court orders Auto Wax, when compiling the above-described spreadsheet, to subtract from the sum requested all costs relating to videotaped depositions (including video technician fees), unless Auto Wax can demonstrate exceptional circumstances, i.e., that the videotaping was done because transcription was for some reason unavailable.
4. Transcript premiums ($204.73)
Defendant also argues that it should not be required to reimburse Plaintiff for premiums charged to Auto Wax by the court reporter for Auto Wax's failure to pay the court reporter's fees by a specific date. For example, one of Auto Wax's invoices, dated December 30, 1999, charges $2,484.75, but requires that Auto Wax pay $2,509.60 if payment is made after January 29, 2000. Because Auto Wax did not make the payment until February 1, 2000, it had to pay the higher amount, and is now asking Mark V to filly reimburse it for that cost. Auto Wax states in its Reply that it agrees to decrease its bill by $204.73, the amount Auto Wax has determined to be the total of such premiums. The Court therefore subtracts from the Bill of Costs the $204.73 owing to the extra fees charged by the court reporter because of Auto Wax's late payment.
5. Missing transcript invoice ($7,789.86)
Mark V asserts that it cannot locate invoice #96865, dated March 1, 2001, for $7,789.86 (which Auto Wax lists as showing fees charged by the court reporter), and that the amount contained on the invoice should thus not be allowed. Auto Wax responds that the invoice was provided to the Court for an in camera inspection in connection with Auto Wax's attorneys' fees claim. The Court has located the invoice, but has found that the transcript costs billed to the client in the invoice only add up to $4,030.37. Thus, the Court shall only award Plaintiff the $4,030.37 in the invoice, unless Auto Wax can show that the additional $3,059.49 is also detailed in the invoice.
In regard to Auto Wax's citation to in camera invoices, Mark V filed a Supplemental Objection in which it protested Auto Wax's listing of invoices in the Bill of Costs that are not appended to the Bill but instead were given to the Court for in camera review in connection with Auto Wax's attempt to recover attorneys' fees. The Court concurs with Defendant in finding this to be improper. The Bill of Costs form used by this District requires the prevailing party to submit "documentation for requested costs in all categories." There is no reason why Auto Wax should be allowed to forego this requirement simply because it previously gave the Court the invoices for in camera review in connection with Auto Wax's claims for attorneys' fees. Thus, the Court orders Auto Wax to supplement its Bill of Costs by attaching any invoices not already included with the Bill of Costs, with any confidential information (such as attorneys' work descriptions) redacted from the invoices.
6. Court reporter's parking expenses ($62)
Mark V next argues that Auto Wax should subtract the amount claimed for the court reporter's parking expenses because such expenses are not allowed. The Fifth Circuit addressed court reporters' travel expenses in West Wind Africa Line, Ltd. v. Corpus Christi Marine Services Co., 834 F.2d 1232, 1237 (5th Cir. 1988), in which it stated:
Section 1920 permits recovery only of the court reporter's fee for a transcript, not of the reporter's travel expenses. No other statutory provision defines court reporter's fees as including travel expenses in the way that § 1821 defines the amount allowed for the fees and expenses of witnesses. Accordingly, this item should [be] disallowed.Id. Auto Wax cites no contrary authority in its Reply. Therefore, the Court finds that such expenses should be subtracted from the Bill of Costs. Mark V has found at least five invoices that contain such travel expenses; the expenses in these invoices total $62, all of which were the transcriptionist's parking fees. In addition to subtracting this amount from the Bill of Costs, the Court orders Auto Wax to search for any other such fees charged in the Bill of Costs and deduct them.
7. Expedited transcript charges (total cost unknown)
Mark V objects to paying for transcripts Auto Wax received on an expedited basis, because expedited transcripts cost substantially more than unexpedited transcripts. A party cannot recover expedited transcript charges unless the expedited transcripts "were necessary for trial preparation." 28 U.S.C. § 1920 (2). Although Auto Wax's Reply contains the blanket statement that "deposition transcripts obtained on an expedited basis were necessary due to the pending trial date or to then-pending law and motion matters for which immediate preparation was necessary," it does not contain an itemized list of which transcripts were expedited and why the transcripts were needed on an expedited basis.
Case law on this issue shows that more than a blanket assurance of necessity is required for a party to recover these extra costs. At least one Judge within this District has allowed a party to recover expedited costs only after the party demonstrated, on a transcript-by-transcript basis, why the transcripts needed to be expedited. Datapoint Corp. v. Picturetel Corp., No. 3:93-CV-2381-D, 1998 WL 401630, at *3 (N.D. Tex. July 9, 1998) (Stickney, Mag. J.). Similarly, the Fifth Circuit has held that expedited transcript charges cannot be taxed when the party seeking reimbursement fails to make a particularized showing that the transcripts were ordered on an expedited basis out of necessity, and not because counsel has simply procrastinated in taking the depositions until the last moment. Fogleman v. ARAMCO, 920 F.2d 278, 286 (5th Cir. 1991). In Fogleman, the court stated:
ARAMCO offers no explanation . . . why it was necessary to obtain a copy of Fogleman's deposition at a "semi-expedited" rate. We have previously held that the extra cost of obtaining a trial transcript on an expedited basis is not taxable unless prior court approval of expedition has been obtained or the special character of the litigation necessitates expedited receipt of the transcript. The same reasoning applies to a copy of a deposition obtained on an expedited basis. ARAMCO had more than two years in which to take Fogleman's deposition, but failed to do so until litigation deadlines were at hand. ARAMCO offers no justification for its actions. Additional charges incurred merely for the convenience of one party's counsel should not be taxed to the other. We therefore remand this issue to the district court, to determine whether obtaining Fogleman's deposition on a semi-expedited basis was necessary. If not, the district court should reduce the taxable costs for this deposition to whatever the charge would have been on a non-expedited basis.Id. at 286.
Mark V has identified five invoices in which the court reporter charged for expedited service: (1) the Esquire invoice dated March 11, 2000 (the total bill was for $747.45; the invoice does not show what amount of that cost was for expediting the transcript); (2) the Atkinson-Baker invoice dated April 17, 2000 (the total bill was for $1,627.70; the invoice does not show what amount of that cost was for expediting the transcript); (3) the Atkinson-Baker invoice dated April 25, 2000 (the total bill was for $1,201.93; the invoice does not show what amount of that cost was for expediting the transcript); (4) the Esquire invoice dated February 12, 2001 (the court reporter charged $1,057.05 for expedited service); and (5) another Esquire invoice dated February 12, 2001 (the court reporter charged $1,215.00 for expedited service). For each of these invoices, the Court requires Auto Wax to explain the reason for ordering the transcripts on an expedited basis, including the reason why the depositions could not have been taken earlier to avoid these extra charges. If Auto Wax cannot sufficiently justify its need for the expedited transcripts, the Court shall subtract the expedited transcript fees. Furthermore, for invoices (1) through (3), Auto Wax should identify, if possible, how much of the total bill is attributable to expedited transcript costs. If Auto Wax cannot determine what amount in invoices (1) through (3) is attributable to expedited transcript fees, the Court shall subtract the total amount of those invoices from the Bill of Costs.
Bill of Costs at 16.
Id. at 17.
Id. at 19.
Id. at 23.
Id. at 24.
8. Charges for the cost of postage and delivery fees for deposition transcripts ($337.97)
Mark V contends that it should not be required to reimburse Auto Wax for the cost of postage and delivery fees charged by the court reporter for delivering the deposition transcripts to Auto Wax. Auto Wax offers no argument in its Reply in regard to this issue. At least one district court has found that costs incurred for the delivery of depositions should not be reimbursed. See Bass v. Zeta Consumer Prods., No. ___, 1999 WL 1129603, at *2 (N.D. Ill. Dec. 3, 1999). That court stated:
Bass also objects to two $18.00 messenger fees for delivery of the transcript and a copy of a deposition. Although § 1920 allows recovery of fees for transcripts, it does not specifically allow recovery of courier or messenger costs. A delivery charge is similar to postage or mail delivery. Costs for postage and mail services have consistently been disallowed on the grounds that these expenses are generally considered overhead, or part of the cost of operating a law firm.Id. Similarly, a Judge within this District has found that "[p]ostage is not included in section 1920 and is not recoverable as a cost." Embotelladora Agral Regiomontana, S.A. de C.V. v. Sharp Capital, Inc., 952 F. Supp. 415, 418 (N.D. Tex. 1997) (Boyle, Mag. J.). Thus, the law is clear that postage and delivery fees, such as for deposition transcripts, cannot be taxed. Mark V has identified fourteen invoices that include delivery/postage charges which total $337.97; problematically, however, one invoice does not separately list the delivery fee. Auto Wax should therefore be ordered to (a) find out how much the delivery fee in that invoice was, so that the Court may deduct that amount, plus the $337.97 also attributable to delivery fees, from the Bill of Costs, and (b) Auto Wax should also be required to separately go through the invoices to ensure that all delivery/postage charges for deposition transcripts are taken out.
This is the Esquire invoice dated March 12, 2000. See Bill of Costs at 16.
9. Charges for ASCII copies of deposition transcripts ($61.25)
Mark V argues that it should not be charged for the costs of ASCII copies of deposition transcripts ordered by Auto Wax. Auto Wax does not offer a response to this objection. The district courts that have spoken on this issue have found that such costs are not recoverable. See Jones v. Bd. of Trs. of Cmty. Coll, Dist. No. 508, 197 F.R.D. 363, 364 (N.D. Ill. 2000) (finding that the defendant "was not entitled to recover the charge for ASCII diskettes of deposition transcripts, which are merely for the attorneys' convenience"); Scallet v. rosenblum, 176 F.R.D. 522, 527 (W.D. Va. 1997). The Scallet court explained:
Courts have not been as magnanimous with deposition costs derived from the use of new technology, particularly compressed text "minuscripts" and disk copies of transcripts, as they have been with copies of depositions. Most courts have reasoned that minuscripts and disk copies are only for the convenience of attorneys. Disk copies, in particular, are disfavored. [One court] has analogized a disk copy to computerized research, which is not taxable. "Among other things, the disk enables the user to locate specific information within the deposition with the aid of a "search' function. Thus, the disk is much like a litigation support system, whose function is to facilitate information retrieval. . . . The expense of such a system is not a taxable cost under Section 1920."Id. (citations omitted). In line with this reasoning, the Court should require the costs of the ASCII diskettes to be deducted from the Bill of Costs. Mark V has identified three invoices submitted by Auto Wax that contain such charges. The charges from these invoices add up to $61.25, but, problematically, one invoice does not separately list the ASCII disk charge. Auto Wax is therefore ordered to (a) find out how much was charged for the ASCII disk in that invoice, so that the Court may deduct that amount, as well as the $61.25 identified above, from the Bill of Costs, and (b) search for ASCII disk charges on invoices other than those identified by Mark V so that the Court may also deduct those amounts.
This is the Esquire invoice dated March 12, 2000. See Bill of Costs at 16.
10. Charges for ASCII copies of trial transcripts ($1,975)
Mark V also contends that Auto Wax should not be reimbursed for ASCII copies of trial transcripts, citing to two district courts that have disallowed reimbursement for the costs of such disks. See U.S. Media Corp. v. Edde Entm't. Inc., No.___, 1999 WL 498216, at *9 (S.D.N Y July 14, 1999) ("We do not . . . view the additional expenditure for ASCII disks as necessary. Although such added features make a review of the [trial] record somewhat more efficient, there is no suggestion here that this was not principally for the convenience of counsel. Accordingly, added charges for this feature will not be taxed."); Berry v. Gen. Motors Corp. ("Plaintiffs object to the taxation of $120.00 paid to the court reporter for a copy of the trial transcript on ASCII disks. Defendant argues that because of the size of the trial transcript, the ASCII disks helped defendant to more readily reference the trial transcript. "[N]ecessarily obtained' does not mean that the materials and services added to the convenience of counsel. Defendant fails to prove that the ASCII copy of the trial transcript was necessarily obtained for use in the case. Costs of the ASCII disks will not be taxed to plaintiffs."). Following the reasoning of these decisions, this Court finds that it should not require Mark V to reimburse Auto Wax for the disk versions of the trial transcript. Mark V has identified three invoices that contain such charges, which total $1,975.00. These charges should be deducted from the Bill of Costs.
11. Costs for certain printed items ($1,924.44)
Mark V objects to reimbursing Plaintiff for copying costs associated with the following invoice entries: (1) "Letter size color prints for the month of June [2001]" (amounting to $1,254.96); (2) "Black and white laser prints for the month of June, 2001" (amounting to $116.61); (3) "Black and white laser prints for the month of July, 2001" (amounting to $76.59, which is the total of two separate charges for $64.86 and $11.73); and (4) "Letter size color prints for the month of July, 2001" (amounting to $476.28). The basis for Mark V's objection is that, given the time period in which these copies were made, they could have been trial exhibits, the costs of which Mark V contends are not recoverable. Auto Wax responds that it has provided sufficient explanation of the type of copies that were made.
See Bill of Costs at 58.
See id.
See id. at 60.
See id. at 61.
Fifth Circuit law holds that "[a]bsent pretrial approval of the exhibits . . . a party may not later request taxation of the production costs to its opponent." La. Power Light Co. v. Kellstrom, 50 F.3d 319, 335 (5th Cir. 1995); see also Super Sack Mfg. Corp. v. Chase Packaging Corp., No.___, 1995 WL 813691, at *5 (N.D. Tex. 1995) ("The law in this Circuit permits taxation of costs for demonstrative evidence only if there is pre-trial authorization by the trial court."). Case law therefore indicates that a court should prohibit reimbursement of copies used as trial exhibits unless the prevailing party obtained pretrial approval for the making of the exhibits. Because the timing of the above-identified copy charges is so near to the date of the trial, the Court shall deduct the charges unless Auto Wax can show that the copies were not used as trial exhibits.
Mark V states that, even if the above-listed copies were not trial exhibits, they should not be allowed as costs because Auto Wax has not demonstrated that the costs were necessary for the litigation. This objection will be discussed in section 13 below.
12. Expert witness fees ($5,252.84)
In addition to the $40 expert witness attendance fee allowed under 28 U.S.C. § 1821 (b), Auto Wax seeks to recover $5,252.84 for its experts' subsistence and travel. Mark V argues that the following statement in the Court's Amended Final Judgment prevents Auto Wax from recovering subsistence and travel expenses for its expert witnesses under 28 U.S.C. § 1821 (c)-(d), in addition to the $40 attendance fee given them under 28 U.S.C. § 1821 (b): "Expert fees may be recovered only to the extent authorized by Fed.R.Civ.P. 26(b)(4) and 28 U.S.C. § 1821 (b), 1920, and 1924." Since § 1821(b) only provides for experts to collect a $40 attendance fee, and not travel or subsistence costs, which are instead taxable under § 1821(c) and (d), Mark V argues that the Court, by stating in the Amended Final Judgment that only recovery of expert fees under § 1821(b) are allowed, "implicitly declined to award Auto Wax any other witness fees that may be recoverable, such as Auto Wax's witness[es'] travel and subsistence expenses." The Court finds, however, that it did not prohibit recovery of experts' subsistence and travel costs in the Amended Final Judgment. Although the language is admittedly unclear, the Amended Judgment was intended to allow Auto Wax to recoup these costs. Thus, Mark V's objection to the experts' travel and subsistence expenses is overruled.
Mark V also claims that Auto Wax "improperly seeks to recover witness fees for Dennis Dehn . . . even though Mark V was the party that subpoenaed Dehn and paid his witness fee." Auto Wax does not respond to this allegation, although its Bill of Costs includes a request for $51.78 as compensation for Dehn's presence at the trial and for his mileage reimbursement. Because Auto Wax does not contest that Mark V paid for Dehn, the Court orders that the $51.78 attributable to Dehn's expenses be deducted from the Bill of Costs.
13. Exemplification and photocopying costs ($76,574.02)
Mark V argues that Auto Wax has not demonstrated with sufficient specificity that the photocopies claimed on Auto Wax's Bill of Costs (amounting to $76,574.02) were "necessarily obtained for use in the case" as required by § 1920(3). Mark V also complains that its review of the invoices attached to the Bill of Costs "do not reveal [certain] invoices matching those listed in the Summary of Costs" on pages 2 through 3 of the Bill of Costs. Mark V explains that its "addition of all of the invoices purportedly documenting Auto Wax's photocopying costs . . . support a request for only $38,598.93 of such costs." Auto Wax responds by stating that certain invoices were presented to the Court for in camera review, but does not list which invoices those were.
The Court finds that, with the exception of the copying costs Mark V identified in section 11 as having been incurred close to trial, Auto Wax has demonstrated in the invoices attached to the Bill of Costs that the copying costs were necessary for litigation purposes. However, at this point, the Court will only award Auto Wax the $38,598.93 in copying costs that Mark V confirmed in its review of the invoices attached to the Bill of Costs. The other $37,975.09 claimed for such costs shall be deducted, unless Auto Wax produces and files supporting invoices, along with a spreadsheet that itemizes the costs and lists the page numbers corresponding to the invoices submitted with the Bill of Costs.
14. Costs for interpreter services ($1,253.97)
Mark V argues that "Auto Wax has made no attempt to establish that the specific translation costs it incurred in this case `were necessarily incurred' for use in the case," as is required by § 1920(4). Auto Wax responds:
As the Court is aware, Mark V imported clay from Japan. A number of documents produced to Auto Wax by Mark V were in Japanese, including the crucial clay formula given to Dennis Dehn by Mr. Hori, which indicated that the clay contained an adjuvant or detergent. Even the Court found it necessary to use the services of a translator when the issue of a disputed translation arose during the course of the trial. Obtaining a translation of such critical documents was necessary to the trial of this matter, and the costs were reasonably incurred for such documents.
Auto Wax is asking for reimbursement in the amount of $1,253.97 for translation services. The explanations on the invoices for the translations include: (1) "translate letter and court order, English Japanese" (amounting to $120); (2) "translate and certify documents, Japanese English" (amounting to $132.66); (4) "document review and certification" (amounting to $320); and (4) "translate and certify document . . . Japanese English" (amounting to $406.70). Mark V finds the first translation expense listed above (for $120) especially suspicious because it specifies that the documents were translated from English to Japanese. Mark V argues, "[i]f any necessary translations services were rendered in this case, they would have been from Japanese to English, not vice-versa." Mark V also disputes the Court's reimbursement of an additional $194.61 in translation expenses claimed by Auto Wax because the invoice Auto Wax cites in support of the expense, invoice number # 84389, is not attached to the Bill of Costs and therefore cannot be verified.
The Court finds that it is proper to award only $859.36 in translation expenses — these are the total expenses claimed by Auto Wax, less the $120 Auto Wax is claiming for the English to Japanese translation and the $194.61 Auto Wax is claiming for invoice #84389. Auto Wax may recoup the $194.61 purportedly on invoice # 84389 if Auto Wax provides a copy of that invoice to the Court and appends it to the Bill of Costs.
15. Costs for attorneys' travel meals ($56,208.92)
Mark V seeks to have the Court deduct the $49,466.72 Auto Wax is requesting for its attorneys' travel expenses and the $6,742.20 it is requesting for its attorneys' meal expenses. Substantial authority supports Mark V's argument that attorneys' travel and meal expenses are not recoverable. In Walton v. Autotrol Corp., No. ___, 1998 WL 531881, at *3 (N.D. Tex. Aug. 18, 1998) (Stickney, Mag. J.), another Judge within this District explained,
Plaintiffs attempt to recuperate their attorneys' travel expenses because the attorneys were forced to travel to Wisconsin and Minnesota to depose some of Autotrol's witnesses. Although 28 U.S.C. § 1821 (a)(1) provides for taxing of witnesses' travel, it does not authorize the court to reimburse Plaintiffs for their own expenses [or] their attorneys' expenses to travel to another state for depositions. Although ["witness"] is not defined in the statute, it clearly contemplates a person who appears for the purposes of giving testimony in the case. Without any Fifth Circuit precedent directing otherwise, this court will not define that term so broadly as to include attorneys who attend a deposition to elicit testimony from the witnesses.Id. Auto Wax does not cite any authority to the contrary. Therefore, the Court orders that the $56,208.92 attributable to the attorneys' travel and meal expenses be deducted from the Bill of Costs.
16. Postage courier costs ($16,307.05)
Mark V argues that Auto Wax's postage costs (amounting to $2,753.67) and courier costs (amounting to $13,553.38) are not recoverable. Another Judge within this District has found that postage and courier costs "are . . . akin to overhead costs[,] which cannot be recovered under 28 U.S.C. § 1920." Migis v. Pearle Vision, Inc., 944 F. Supp. 508, 518 (N.D. Tex. 1996) (Kaplan, Mag. J.); see also Odom v. Frank, 782 F. Supp. 50, 53 (N.D. Tex. 1991) (Belew, J.) ("[A]ttorneys' travel expenses related to depositions will not be taxed as costs[, nor] will the standard messenger or postage fees."). Auto Wax responds to Mark V's argument by stating:
Mark V's position on this matter is ironic, given that Mark V's own attorneys suggested that the parties send all court-filed and discovery related documents by Federal Express or similar overnight delivery service. Having requested that documents be delivered to it in this manner, Mark V now wants to disavow responsibility for those costs, after losing the case at trial.
As evidence of the agreement, Auto Wax attached to its Reply a September 14, 1999 letter from Auto Wax's attorney to counsel for Mark V in which the attorney states, "[w]ith respect to service of process, we agree to your proposal concerning service of court-filed and discovery-related documents by Federal Express, or a similar overnight delivery service." This letter shows that both parties agreed to serve the other via a private delivery service.
Additionally, Auto Wax explains that "[w]hile many cases do deny recovery for postage, courier costs, faxes, long distance calls, etc., such expenses have been awarded as costs in other cases." Id. In support of this, Auto Wax cites Carroll v. DeBuono, 49 F. Supp.2d 191, 197 (N.D.N.Y. 1999), which states that "costs associated with litigation are generally recoverable if they are `reasonable out-of-pocket expenses incurred by the attorney and which are normally charged to fee-paying clients.'" Id. (quoting Reichman v. Bonsignore, Brignatti Mazozotta P.C., 818 F.2d 278, 283 (2d Cir. 1987)). However, Carroll was a civil rights case, and the court in that case limited its award of litigation costs to civil rights cases. A fill rendition of the portion of Reichman quoted by the Carroll court demonstrates this limitation: "[A]wards of attorney's fees in civil rights suits under fee-shifting statutes, such as the ADEA, `normally include those reasonable out-of-pocket expenses incurred by the attorney and which are normally charged to fee-paying clients.'" Reichman, 818 F.2d at 283.
Since the Auto Wax case is clearly not a civil rights case brought under a fee-shifting statute, Auto Wax is not entitled to the above-listed costs associated with the litigation, since such costs are not provided for in 28 U.S.C. § 1821 or 1920. Even though Auto Wax argues that fairness requires that it be reimbursed for the costs of the private delivery service for delivering documents to Mark V since Mark V proposed that the parties deliver documents to each other in that manner, that does not negate the fact that the Court has no statutory authority for awarding those extra costs to Auto Wax. In sum, the law requires the Court to deduct $16,307.05 (the expenses Auto Wax claimed for postage and courier costs) from the Bill of Costs.
17. Long distance calls, faxes, computerized legal research ($22,256.16)
Mark V also explains that the law prohibits reimbursement of Auto Wax's claimed expenses for long distance calls, faxes, and computerized legal research. Case law supports Mark V's request that the Court deny allowance of these costs. See Hawkins v. Nat'l Ass'n of Sec. Dealers, Inc., No. 3:96-CV-3219-R, 1998 WL 74259, at *1 (N.D. Tex. Feb. 13, 1998) (Buchmeyer, C.J.) ("NASD . . . seeks reimbursement of certain costs. These include attorney travel expenses, in-house duplication, on-line research, and telephone charges. Such costs are not recoverable under the general statute authorizing recovery of federal court costs, 28 U.S.C. § 1920, and NASD cites no other statute that would allow for recovery in this particular case. Accordingly, no costs shall be awarded."); Embotelladora Agral Regiomontana, S.A. de C.V. v. Sharp Capital, Inc., 952 F. Supp. 415, 418 (N.D. Tex. 1997) (Boyle, Mag. J.) ("Telecopy expenses, express delivery charges, and telephone expenses, like postal expenses, are not listed in the statute and represent `overhead' costs, not litigation costs [that can be taxed]."). Thus, the Court orders that the following expenses be deducted from the Bill of Costs: $2,133.30 for telefax costs, $1,398.58 for long distance telephone costs, and $18,724.28 for computerized research. This total comes to $22,256.16.
18. Hardware materials for exemplification of exhibits at trial ($18,496)
Mark V argues that Auto Wax should not be allowed to recoup its expenses for leasing audio-visual equipment which Auto Wax used to display exhibits at trial, including computers, monitors, a printer, a scanner, a VCR, A/V equipment stands, audio speakers, and other computer accessories. These expenses total $18,496. Fifth Circuit law holds that such expenses can be taxed as costs only if the Court gave pretrial authorization for Auto Wax's incurring of the expense of leasing and using the equipment. See J. T. Gibbons, Inc. v. Crawford Fitting Co., 760 F.2d 613, 615 (5th Cir. 1985). Auto Wax argues that, by allowing Auto Wax to use its equipment, the Court implicitly authorized Auto Wax's expenditures for those items. Auto Wax contends that it "did have the explicit or implicit permission from the Court to use AN equipment at trial, based upon either comments made prior to or during trial, or the tacit approval of the Court during the set-up process for such equipment for use at trial." Furthermore, Auto Wax asserts that "the use of such A/V equipment [was] particularly reasonable and necessary in [such] a document intensive, complicated case. The benefits of using such materials in a patent case are obvious, including savings of cost, time, and expense to the Court and the parties." Id.
The Court finds, however, that it never, either implicitly or explicitly, authorized Auto Wax to incur such costs. Therefore, the Court will not allow Auto Wax to recover the $18,496 it is requesting for hardware and related expenses.
19. Costs for digitized depositions of certain witnesses ($2,859.12)
Mark V objects to Auto Wax's request for reimbursement of $2,859.12 for "digitized exemplifications used at trial." These include digitized depositions of Wayne Way, Frank Marchese, and Gary Cude. Mark V likens such charges to the editing of videotape depositions for presentation at trial, which another Judge within this District has held to be nontaxable, because making the video deposition is itself untaxable. Datapoint Corp. v. Picturetel Corp., No. 3:93-CV-2381-D, 1998 WL 401630, at *4 (N.D. Tex. July 9, 1998) (Stickney, Mag. J.). The same logic applies in this case: Since Auto Wax cannot recoup the cost of making the video depositions of the above-listed witnesses, it should not be able to recoup the cost of digitizing those video images for use at trial. Thus, the Court orders that the $2,859.12 attributable to these digitized images be deducted from the Bill of Costs.
20. Conclusion/Summary
For the foregoing reasons, the following expenses should be deducted at this point from Auto Wax's Bill of Costs:
Fees To Be Reason Deducted in camera $122,377.97 TOTAL
$132.50 Unexplained "fees of the Clerk" $246.00 Costs of Plaintiffs private process server $204.73 Transcript premiums (for Auto Wax's late payment for transcripts) $3,059.49 The portion of the $7,789.86 Auto Wax claims is on invoice #96865, which Auto Wax gave to the Court in connection with Auto Wax's attorneys' fees claims, that the Court cannot confirm from a review of the invoice $62.00 Court reporter's travel/parking expenses $337.97 Postage delivery fees for deposition transcripts $61.25 Charges for ASCII copies of deposition transcripts $1,975.00 Charges for ASCII copies of trial transcripts $120.00 English to Japanese translation cost $51.78 Travel expenses Auto Wax charged for Dennis Dehn, which were actually paid by Mark V $56,208.92 Attorneys' travel meals $16,307.05 Postage courier costs (excluding those for deposition transcripts) $22,256.16 Long distance calls, faxes, and computerized legal research $18,496.00 Costs for hardware and exemplification of exhibits at trial $2,859.12 Costs for digitized depositions of certain witnesses The Court orders the Clerk to deduct $122,377.97 from Auto Wax's Bill of Costs. In addition, the following fees will be deducted at a later time if Auto Wax does not clarify them to the satisfaction of the Court: Fees That May Reason Be Deducted Later Unknown amount Video deposition fees/video technician fees (these fees will be deducted when Auto Wax informs the Court of the total amount of video deposition/video technician fees that are included in the Bill of Costs) $28,850.28 The Court will deduct some or all of this amount if Auto Wax does not provide a more detailed summary of the transcript costs that includes (a) the precise nature of the cost; (b) the name of the person deposed; (c) how the transcripts were used in preparation for or at trial; and (d) the page number corresponding to the copy of the invoice submitted with the Bill of Costs Unknown amount The amount of the hand delivery fee and ASCII disk fee listed on Esquire invoice #47530 (p. 16 of Bill of Costs). Since neither cost is taxable, Auto Wax must determine how much the costs were (since they were not separately listed on the invoice) so that they can be subtracted from the invoice $194.61 Amount charged for translation on invoice #84389, which is not attached to the Bill of Costs. That amount will be deducted by the Court unless Auto Wax provides a copy of the invoice and the Court is satisfied that the translation cost was warranted $37,975.09 Exemplification and photocopying costs that Mark V could not confirm from its review of the invoices submitted along with the Bill of Costs. This amount will be deducted unless Auto Wax files supporting invoices. Unknown amount The total amount of expedited transcript charges (Auto Wax must provide the Court with this amount). That amount will be deducted by the Court unless Auto Wax demonstrates that the expedited transcripts were necessary for trial preparation $1,924.44 Costs for the printed items listed in section 11 of this Opinion, which the Court will deduct unless Auto Wax can show that the copies were not used as trial exhibits Auto Wax must provide the requested briefing and evidence on the above-identified issues by March 4, 2002. The brief may not exceed seven pages. Mark V may file a four-page Response to Auto Wax's brief within ten days of Auto Wax's filing of its brief.