Opinion
Proceeding on motion by plaintiff to review item taxed by defendant as costs. The District Court, Mansfield, J., held that payments made by defendant to investigator in conducting surveillance of plaintiff and later testifying in trial with respect to such surveillance stood on same footing as payments made to any other expert witness or for any other investigation conducted in preparation for trial, and were not properly taxable as costs.
Motion granted in part.
Schiffman & Kassin, New York City, Sidney Schiffman and Hyman Mates, New York City, of counsel, for plaintiff.
Haight, Gardner, Poor & Havens, New York City, Stephen K. Carr, New York City, of counsel, for defendant.
MEMORANDUM DECISION
MANSFIELD, District Judge.
Plaintiff's motion for review of the item of $626.40 taxed by defendant as costs for ‘ moving pictures in evidence (film and services)’ is granted and the said sum is disallowed, except for amounts actually expended by the defendant for motion picture film exhibited at the trial, and for the development and exhibition of the film at the trial. The portion of the said sum which represents payments made by the defendant to an investigator for services in conducting a surveillance of the plaintiff and in later testifying at trial with respect to the surveillance does not fall within any of the classifications of fees taxable as costs under Title 28 U.S.C.A. § 1920. Such payments stand on the same footing as those made to any other expert witness or for any other investigation conducted in preparation for trial. Commerce Oil Refining Corp. v. Miner, 198 F.Supp. 895 (D.R.I.1961) (and cases cited therein); see generally, Farmer v. Arabian American Oil Co., 379 U.S. 227, at 235, 85 S.Ct. 411, 13 L.Ed.2d 248 (1964).
The film itself, however, was a direct pictorial recordation of plaintiff's physical movements, which contradicted his claim and testimony of physical disability by showing him, among other activities, standing on a step ladder and cleaning the windows of his apartment at a time when, according to his own sworn affidavit, he was totally disabled. As such, the film was a record necessarily obtained for use in the case, and, this Court exercises the discretion granted it by Rule 54(d) of the Federal Rules of Civil Procedure (see Farmer v. Arabian American Oil Co., supra) to allow costs to the defendant for the previously delineated expenses.
So ordered.