Summary
allowing cost of certain depositions even though they were for investigatory purposes only and not used in trial
Summary of this case from Grasty v. JuanOpinion
No. CV-F-99-5583 OWW/SMS.
August 2, 2010
MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART USF G'S BILL OF COSTS (Doc. 896)
United States Fidelity Guaranty Company, American Specialty Insurance Services, Inc., and American Specialty Risk Management, LLC (collectively "USF G") have filed a Bill of Costs, seeking to recover the following costs from Lee Investments, LLC ("Lee"): $14,335.50
USF G submitted a bill of costs on March 12, 2007 (Docs. 712-716). The bill of costs submitted on August 14, 2009 (Doc. 896), supercedes the earlier bill of costs.
A. Fees for Service of Summons and Subpoena.
Lee objects to these costs on a number of grounds.
1. Deposition Subpoenas.
Lee objects to taxing the full costs of deposition subpoenas in this action. Lee contends that the full amount, $1806.50, should be reduced by half, to $903.25. In support of this objection, Lee relies on the Declaration of Daniel O. Jamison:
2. I have been the lead attorney for Lee in the above captioned matter since approximately February 2006 and was the lead attorney for Lee in the January/February 2007 jury trial and the April 2007 court trial in this case. Since spring 2006, I have also represented Lee as lead counsel in the defense of the claim of . . . USF G . . . in California Workers' Compensation Appeals Board (`WCAB') Case No. SB 0288749, entitled Conley v. The Island, et al., that USF G is entitled to rescind the workers' compensation insurance policy that has been the subject of the above captioned action.
3. Since becoming involved in these two matters, I have read most, if not all, of the depositions that were taken in the two cases before I became involved. On the record in several of the depositions, there were stipulations between Lee and USF G that the deposition would be taken jointly in the two proceedings and could be used in both proceedings. Although USF G may dispute the application of the stipulation to expert witness depositions, it is and was my understanding that by stipulation and/or notice all of the depositions taken in this action were being taken in both proceedings.
4. USF G's claim for rescission in WCAB Case No. SB 0288749 has not yet been adjudicated before the WCAB. There has been no determination in the WCAB proceeding whether or not USF G is entitled to rescind the subject insurance policy and no prevailing party has been determined in that proceeding. At the present time, the above captioned court has issued an injunction preventing Lee from seeking to have the WCAB make a determination whether or not USF G is entitled to rescind the subject policy.
Exhibit A to Mr. Jamison's Declaration are partial copies of the depositions of Richard Miler, Elaine Bartsch, and Stan Sheehan. The Miler and Bartsch depositions were taken in the Federal action. The Miler deposition states:
MR. SMYTH: [¶] Let's put a stipulation on the record. This is going to be used in both — potentially used in the Workers' Compensation and the Federal action, but we'll stipulate that the court reporter is relieved of her obligations under the California Code of Civil Procedure with respect to the Workers' Compensation portion; that the witness can sign the deposition under penalty of perjury and that if he doesn't sign it within 30 days of having received it for his signature, that a certified copy may be used with the same force and effect as a signed original.
The same stipulation was entered into in the Bartsch deposition. In the Sheehan deposition, the following stipulation was entered into:
MR SMYTH: Okay, while we were off the record, we discussed the fact that this deposition had been noticed only in the workers' compensation action. We, among the stipulations that I'll propose here . . . is that the deposition may be used and should have a duplicate cover page for not only the workers' compensation action, but the federal court action. And that the deposition may be used in . . . both the federal court and the workers' compensation action. We additionally propose . . . for stipulation that the witness may have 30 days after receipt of the transcript to make any changes as are appropriate and to sign the transcript. And that if a signed copy is not received and copies to the changes provided to counsel and the signature page within 30 days, that a certified copy may be used in all proceedings in these two matters with the same force and effect as a . . . signed original. This deposition is being taken in connection with a case pending in the federal court in California and in a California workers' compensation action. To the extent that there's a stipulation required that the — in the event that the deponent does not sign the document in the presence of the court reporter, the parties stipulate that that requirement has been relieved and the deponent may sign the document under penalty of perjury.
The parties so stipulated.
Citing Parkerson v. Borst, 256 F. 827 (5th Cir. 1919), for the proposition that "[u]ntil final judgment, the incidence of costs is not determinable," Lee argues that, because there has been no final determination in the WCAB case, the costs of the depositions should be split between this action and the WCAB case.
USF G responds that Lee's contention that these costs should be halved because the parties agreed that the depositions would be admissible in the WCAB proceeding is without merit:
Such costs were incurred in the District Court action. More importantly, the judgment of the District Court under which costs were awarded constitutes a final judgment resolving USF G's complaint in all forums and is res judicata.
By Memorandum Decision filed on December 2, 2008, (Doc. 864), and by Order filed on December 19, 2008, (Doc. 872), the Court ruled that Lee was precluded by res judicata from proceeding with the WCAB action. While this ruling is on appeal to the Ninth Circuit, it nonetheless remains that there is a final Judgment pursuant to Rule 54(b), Federal Rules of Civil Procedure, in this action. Lee's contention that the costs of the deposition subpoenas should be halved because of the possibility that the Ninth Circuit will reverse this Court's rulings has no basis in law. The requested deposition costs are allowed as all three depositions were used in the federal case.
2. Witness Subpoenas.
Lee argues that the cost of witness subpoenas for those witnesses who did not testify at trial should be disallowed, seeking a reduction of $934.56. Specifically, Lee objects to the following costs:
Date Invoice Vendor Description Amount 1/27/07 1621 SoCal Trial Attempt to 110.00 Subpoena serve Richard Miler 1/26/07 1620 SoCal Trial Subpoena of 65.63 Subpoena Dawn Wilson 2/2/07 SoCal Trial Subpoena of 448.93 Subpoena Richard Miler Witness Fee 2/07/07 1662 SoCal Trial Subpoena of 100.00 Subpoena Nathan Hoagland 2/11/07 1717 SoCal Trial Attempt to 100.00 Subpoena serve Mark Stewart 3/2/07 1718 SoCal Trial Attempt to 110.00 Subpoena serve Steve Chadwick "In order to award costs for service of subpoenas, the court need only determine whether the subpoenas were reasonable and necessary in light of the facts known at the time of service." Movitz v. First National Bank of Chicago, 982 F.Supp. 571, 574 (N.D.Ill. 1997), citing Shea v. Galaxie Lumber Constr. Co., 1997 WL 51655 at *8 (N.D.Ill., Feb. 5, 1997) (costs of service of subpoenas are "recoverable even if the witnesses do not testify at trial; the relevant question is whether the plaintiff `reasonably believed . . . that the testimony would be helpful.'")USF G argues that these costs are recoverable, relying on he Declaration of Bruce T. Smyth, counsel for USF G:
3. Three of the witnesses who are the subject of Lee's request for reduction for costs for subpoenas for witnesses who did not testify, Nathan Hoagland, Mark Stewart and Steve Chadwick, were current or former Lee employees who did not testify because they could not be located by the process server. Since they were performing construction work for Lee at the time of the injury to Diana Conley, if we had located them, they would have testified at trial. The other witness, Richard Miler, a former Lee employee, would have been called to testify except that the testimony of another Lee witness, Lisa Ehrlich, covered the same topics. Miler also could have been called as a witness dependent on the testimony introduced in Lee's case for its defense or counterclaims.
Fees for service of potential trial witness subpoenas are not made inadmissible if the witness is not called to testify if it was necessary that the witness be available to give relevant testimony. USF G makes no showing that Miler's testimony was not cumulative. Miler's witness and subpoena fees are disallowed. USF G has demonstrated that the fees of the other challenged witnesses were necessary.
USF G is allowed costs of $7,418.29.
B. Fees of Court Reporter.
1. Motion and Trial Transcripts.
Lee seeks disallowance of $11,269.35 of the $35,514.80 of costs of the court reporters, which pertain to daily trial transcripts and motion hearing transcripts. Lee notes that USF G did not obtain prior court approval for these transcripts and did not obtain Lee's agreement that some or all of the costs of daily transcripts would be a recoverable cost by the prevailing party. Lee seeks disallowance of the following costs:
Although Lee notes that the Eastern District of California's Local Rules of Practice do not require prior Court approval for a daily transcript, Lee refers to the local rules for the Northern and Central Districts of California and the District of Arizona, which provide that the cost of daily transcripts are not regularly taxable without prior court approval or stipulation by the parties. The local rules of other jurisdictions have no application or relevance in the Eastern District of California.
The basic standard applied by the courts in determining whether to allow the expense of a transcript as a taxable cost is whether the transcript was `necessarily obtained for use in the case.' This does not mean that the transcript must have been `indispensable' to the litigation to satisfy this test; it simply must have been `necessary' to counsel's effective performance or the court's handling of the case. The transcript may have been procured either for use at the trial or after the trial. But the words `use in the case' in Section 1920 mean that the transcript must have a direct relationship to the determination and result of the trial. Taxation will not be allowed if the transcript was procured primarily for counsel's convenience.
"As a general rule, daily trial transcript costs should not be awarded absent court approval prior to the trial . . . However, a District Court may overlook the lack of prior approval if the case is complex and the transcripts proved invaluable to both the counsel and the court." Manildra Mill. Corp. v. Ogilvie Mills, Inc., 76 F.3d 1178, 1184 (Fed. Cir. 1996); see also Maris Distributing Co. v. Anheuser-Busch, Inc., 302 F.3d 1207, 1226 (11th Cir. 2002), cert. denied, 537 U.S. 1190 (2003):
Although we do not believe that the costs associated with expedited trial transcripts should be allowed as a matter of course, lest litigation costs be unnecessarily increased, the district court found that expedited transcripts were necessary in this case given its length and complexity. Under the circumstances, we cannot say that the district court clearly abused its discretion by reaching this conclusion.But see Battenfield of America Holding Co., Inc. v. Baird, 196 F.R.D. 613, 618 (D.Kan. 2000):
While the court expresses no opinion as to whether daily copy was necessary for counsel at trial, the court is in the best position to assess the value of the daily copy to it . . . Suffice it to say, daily copy was not necessary for the court's handling of the case . . . The court cannot recall any occasions in which it even looked to daily copy for guidance in analyzing an evidentiary issue. While daily copy may have aided the parties in resolving various disputes amongst themselves, the court is fairly confident that it could have resolved those issues for the parties in the absence of daily copy. In short, this case was neither so complex nor so lengthy as to justify imposing such `special costs' on BKD.
In arguing that the challenged costs should be allowed, USF G relies on Mr. Smyth's Declaration:
4. The trial and hearing transcripts referenced in Exhibit 3 to the cost bill were utilized for motions to the Court prior to and during trial and for preparation for motions for judgment and closing argument. . . .
5. Most of the trial transcript costs to which Lee objects included only selected portions of testimony utilized for trial or specific hearings necessary for preparation of motions before the Court. The first challenged hearing transcript, for April 29, 2002, was the transcript of the hearing before Magistrate Judge Snyder on motions by USF G to compel further responses by Lee to interrogatories. The transcript of the hearing was necessary to understand the scope of the Court's rulings. The next challenged transcript, for May 1, 2002, was for the hearing on the motions for summary judgment. The transcript obtained for May 20, 2002, concerned the 2000 motion by USF G to dismiss the amended counterclaim.
6. The next series of transcripts which Lee challenges, dated January 2, 4, 17 and 19, 2007, are for transcripts of the hearings before the Court on November 13 and 20, 2006 and on the hearings on the motions in limine on January 17 and 18, 2007. Those transcripts were necessary to understand the Court's rulings on key issues concerning the pretrial proceedings, and in particular, on the motions in limine. Indeed, the parties agreed to split the costs of the transcript of the hearing on motions in limine three separate ways, in order to prepare orders on the motions and to understand the scope of the Court's rulings in order to instruct witnesses as to the scope of their testimony and to conduct examination and cross-examination.
7. The next series of transcripts which Lee challenges all involve portions of relevant testimony and statements in the case, invoices dated February 1, 13, 16, 21, and March 26 and April 1, 2007. All of those invoices were provided for extremely limited portions of the trial or testimony, such as opening statements, the hearings on the Rule 50 motions and copies of specific testimony. In most cases, the invoices were for copies of testimony ordered by other parties, Lee or Aon. All of these costs were necessarily incurred in the trial. In the case of copies of transcripts ordered by other parties, the copies were necessary to prepare responses to the issues likely raised by other parties in the testimony. For example, if other parties intended to raise issues before the Court based on the trial testimony, USF G required its own copy to verify the correctness and immediate context of the testimony cited. Portions of the opening statements and transcripts of the testimony of Lee's key witness, Lisa Ehrlich, were needed for preparation of closing argument and cross-examination.
8. The April 7, 2007 invoice, for a copy of the transcript of the April 4-6 trial, was necessary for the preparation of proposed Findings of Fact and Conclusions of Law for submission to the Court.
9. The charges in invoices for May 31, 2007 and June 1, 2007, were for USF G's copies of the transcripts of the entire trial obtained by Lee in connection with its appeal. Although such copies would be needed in the appeal, USF G obtained the copies in response to any portions of those transcripts which might be referenced by Lee in any future trial of other trial phases, although the other phase issues were subsequently resolved by summary judgment.
10. The invoice dated November 5, 2008 was for USF G's copy of the hearing on its motion for summary judgment on the remaining of Lee's claims in its counterclaim and that of the Rexford Parties (as well as of the motion for injunction) and were needed in case of a challenge to the Court's rulings.
Based on the standards set forth above, the transcripts for April 29, 2002, May 1, 2002, May 20, 2002, and November 5, 2008, were not necessarily obtained for use in the case. All of these transcripts were hearings on motions that were subsequently resolved by Court orders and USF G provides no valid reasons why the transcripts were necessary after the motions were taken under submission. These costs, totaling $458.80, are disallowed.
The transcripts of the hearings on the motions in limine and the partial transcripts of the jury trial and the court trial were necessarily obtained for use in the case. The motions in limine were voluminous and complex and counsel was required to submit proposed orders based on the Court's oral rulings. Both the jury trial and the Court trial involved complicated issues and, as to the Court trial, the transcript was necessary to prepare Findings of Fact and Conclusions of Law.
However, the cost of the entire trial transcript described in paragraph 9 of Mr. Smyth's declaration has not been shown to have been necessarily obtained for use in the case because the remaining issues in the case were resolved by summary judgment motions. Mr. Smyth's declaration makes clear that these costs were incurred on the possibility that reference to them might become necessary. These costs, totaling $4,363.56, are disallowed.
2. Deposition Transcripts.
Lee objects to the $24,245.80 in costs for deposition transcripts.
Lee argues that only half of these costs should be taxed because of the stipulation that the depositions could be used in both the Federal action and the WCAB action.
For the reasons stated above, Lee's objection is without merit.
Lee contends that $1,681.85 of these costs should be disallowed because certain of the depositions were taken purely for investigative purposes and not for trial preparation:
DATE INVOICE DESCRIPTION AMOUNT 9/29/00 85747 Mark Stewart 388.50 8/09/01 97523ELA Richard Miler 796.45 4/3/02 85312 Deborah Long 269.80 4/26/02 85615 D. Wilson 74.80 4/30/02 17738 Pamela Lilly 152.30 In response, USF G relies on Mr. Smyth's Declaration:
11. Although Lee has asserted that costs of the transcripts of the depositions it challenges were not necessarily taken in preparation for trial, portions of the deposition testimony of Debra Long, Dawn Wilson and Richard Miler were designated for trial in the designation of transcripts filed with the Court by USF G. Lee counter-designated substantial portions of that testimony. . . .
This averment is substantiated by Exhibit A to Mr. Smyth's declaration. In addition, Mr. Smyth avers:
12. Although Lee complains that the costs of the transcripts . . . were not prepared for trial, as to the depositions of Debra Long, Dawn Wilson and Pamela Lilly, those depositions were all noticed by Lee in this matter.
That Lee noticed the depositions of Debra Long and Pamela Lilly is substantiated by Exhibit B to Mr. Smyth's Declaration. Mr. Smyth further avers:
13. Although Lee objects to the costs of transcripts of Mark Stewart and Richard Miler, both were employed by Lee or affiliated entities. Mr. Stewart had responsibility for construction in the water park. We did not call him as a witness because we were unable to serve him with a subpoena and because we subsequently determined that his testimony would be duplicative of that of Bruce Calomires, who did testify. Mr. Miler was knowledgeable about the payment of water park construction expenses and of water park construction employees. USF G was prepared to call him at trial and in fact had subpoenaed him for testimony, but determined that his testimony would be duplicative of that of Lisa Ehrlich after she testified.
Deposition transcripts are taxable as costs under 28 U.S.C. § 1920(2). Here, from the record, all of the challenged depositions were taken for trial preparation. Lee's challenge is disallowed.
USF G is awarded costs for fees of the court reporter in the amount of $30,692.44.
C. Fees for Witnesses.
1. Directors or Officers of American Specialty.
Lee objects to the taxation of fees for the following witnesses on the ground that each is an officer or director of American Specialty:
Witness Amount Stan Sheehan (senior vice-president 1,800.49 chief underwriting officer Dan Weir (chief financial officer) 1,362.38 Lowell Gratigny (senior vice- 1,800.87 president of litigation) Parties are generally not able to recover witness fees for their own trial attendance. Barber v. Ruth, 7 F.3d 636, 646 (th Cir. 1993). Lee contends that, where a party is a corporation, generally its officers or directors are required to be present at trial as the corporation's representative or to manage the litigation. Citing Kemart Corporation v. Printing Arts Research Lab., 232 F.2d 897, 901-902 (9th Cir. 1956), Lee asserts that, if such representatives are personally involved in the litigation, the cost to attend the trial should not be recoverable.In Kemart, the Ninth Circuit adopted the reasoning of Perlman v. Feldmann, 116 F.Supp. 102, 115 (D.Conn. 1953), which allowed witness fees as costs for corporate officers:
`No recovery [in the action to which they were called as witnesses] was sought from them individually; their interest was not shown to be other than the natural concern of an officer for the welfare of his corporation. The Clerk's ruling [allowing the fees] was amply supported by the cases which he cited . . . Though these were admiralty cases the principle involved is equally applicable to the situation here.See also El Dorado Irrigation Dist. v. Traylor Bros., Inc., 2007 WL 512428 at *9 (E.D.Cal., Feb. 12, 2007) ("[I]t is proper for the court to assess witness fees for directors and officers of a corporate party who are not personally involved in the litigation.")
In response to Lee's objections, Mr. Smyth avers:
14. Although Lee seeks to exclude some of the costs of witnesses who were also officers of American Specialty, USF G seeks recovery only for the costs where those witnesses testified or were made available for testimony. Both Dan Weir and Stan Sheehan testified during the trial. Although Lowell Gratigny attended large portions of the trial, the only expenses submitted are those for which he was available for testimony, after having been subpoenaed for his trial testimony by Lee. Although it was ultimately determined that he need not testify, Mr. Gratigny was available for testimony.
Here, none of these witnesses was personally involved in this action; none were named as parties. Lee's objection is without merit.
Although not raised by Lee in its objections to USF G's bill of costs, several of the witness fee costs sought by USF G exceed the amounts allowed by Section 1920(3) and 28 U.S.C. § 1821.
Stan Sheehan is listed on Exhibit 4 as attending the trial for two days, incurring a total witness fee of $80.00. However, Exhibit 4 seeks subsistence (hotel/meals) for seven days in the amount of $1,133.49. The Minutes of the jury trial show that Stan Sheehan testified in the jury trial on February 7, 2007 (Doc. 627). Exhibit 4 shows that Mr. Sheehan arrived in Fresno on February 1, 2007 and departed on February 9, 2007. USF G is entitled to the witness fee for the two days sought in the bill of costs pursuant to 28 U.S.C. § 1821(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 or at any time during such attendance.
Section 1821(d) provides for a subsistence allowance to a witness "when an overnight stay is required at the place of attendance because such place is so far removed from the residence of such witness as to prohibit return thereto from day to day" "in an amount not to exceed the maximum per diem allowance prescribed by the Administrator of General Services." In 2007, the GSA per diem for Fresno, California was $79 for lodging and $54 for meals and entertainment. USF G is entitled to costs for lodging and meals for Mr. Sheehan in the total amount of $266.00. USF G is allowed costs of $1,013.00 for Mr. Sheehan's attendance at trial as a witness, disallowing $876.00 of the $1,880.00 in costs sought by the bill of costs.
Dan Weir is listed on Exhibit 4 as attending the trial for one day, incurring a total witness fee of $40.00; Exhibit 4 seeks subsistence for three days in the amount of $489.79. Mr. Weir testified in the jury trial on February 9, 2007. (Doc. 629) Exhibit 4 includes a hotel bill for the Radisson Hotel, Indianapolis Airport for the night of February 7, 2007 ($142.60). Mr. Weir arrived in Fresno on February 8, 2007 and departed on February 9, 2007. USF G is entitled to the cost of Mr. Weir's witness fee, lodging in the amount of $158 and meals in the amount of $32.66 (the actual costs sought). USF G is allowed costs of $1,066.25, disallowing $566.13 of the $1,362.38 in costs sought by the bill of costs.
Lowell Gratigny is listed on Exhibit 4 as attending the trial for one day, incurring a witness fee of $40.00; Exhibit 4 seeks subsistence for four days in the amount of $727.46. Exhibit 4 establishes that Mr. Gratigny submitted hotel bills for only three nights. USF G is entitled to lodging costs in the amount of $237 ($79 × 3) and meals costs in the amount of $179.62 (the actual costs sought). USF G is allowed costs of $1,540.03, disallowing $350.84 in costs sought by the bill of costs.
The costs for lodging for Jack Zygner are reduced from $352.28 to $158.00 ($79 × 2) and for meals from $230.45 to, $162.00 ($54 × 3). USF G is allowed costs of $642.90, disallowing $262.73 in costs sought by the bill of costs.
As to the costs for Kathy Hacker, Ms. Hacker testified on Friday, February 2, 2007 (Doc. 618) and on Tuesday, February 6, 2007 (Doc. 625). Exhibit 4 describes costs for hotel and meals for six days (January 29, 2007, January 30, 2007, January 31, 2007, February 1, 2007, February 5, 2007 and February 6, 2007). Costs for hotel and meals on January 29-31, 2007 are disallowed. $237.00 for hotels on February 1, 5, and 6, 2007 are allowed. Costs for food in the amount of $56.43 (actual amount) are allowed. USF G is allowed costs $3,293.81, disallowing $643.97 in costs sought by the bill of costs.
2. Expert Witnesses.
Lee objects to the witness fees for Bennett Bibel ($192.00) and Stan Sheehan ($1,800.49) on the ground that these were expert witnesses who were not appearing as such pursuant to contract, statute, or appointment by the Court. Therefore, Lee contends, these witness fees must be limited to the $40.00 per day fee paid to other fact witnesses, citing 28 U.S.C. § 1920(6); Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 442 (1987).
Exhibit 4 to USF G cost bill establishes that Bibel was paid a total of $80 for two days attendance at trial and $112.00 for one day's stay at a hotel. The cost for the hotel is reduced to $79.00. Costs of $159.00 are allowed.
As to Mr. Sheehan, Mr. Smyth avers:
15. Although Lee objects to the recovery of the expenses of Mr. Sheehan incurred in connection with his testimony on the additional ground that in testifying as a percipient witnesses he also testified as an expert on the areas of his percipient testimony, as a key witness to the circumstances under which the worker's [sic] compensation policy was issued, he would have testified to the facts even if his testimony as an expert had been excluded.
Lee's objection is meritless. USF G is entitled to recover the costs set forth above for Mr. Sheehan's attendance at trial.
USF G is awarded fees for witnesses in the amount of $8,814.12.
D. Copying Costs.
Lee objects to the $31,842.09 in copying costs on several grounds. 28 U.S.C. § 1920(4) enables the Court to allow copying costs for any document "necessarily obtained for use in the case" and does not specifically require that the copied document be introduced into the record to be an allowable cost. Haagen-Dazs Co., Inc. v. Double Rainbow Gourmet Ice Cream, Inc., 920 F.2d 587, 588 (9th Cir. 1990). "Fees for exemplification and copying `are permitted only for the physical preparation and duplication of documents, not the intellectual effort involved in their preparation.'" Zuill v. Shanahan, 80 F.3d 1366, 1371 (9th Cir. 1996), cert. denied, 519 U.S. 1090 (1997), quoting Romero v. City of Pomona, 883 F.2d 1418, 1428 (9th Cir. 1989). Expert research expenses incurred in assembling and preparing the content of exhibits are not recoverable costs. Romero, id.
Lee cites Coats v. Penrod Drilling Corp., 5 F.3d 877, 892 (5th Cir. 1993) as stating, "The mere recitation with talismanic regularity of the phrase `necessarily obtained for use in the case' is not sufficient . . . Some further showing is necessary." However, there is no such statement in Coats. Lee also cites Haroco, Inc. v. American Nat'l Bank Trust Co. of Chicago, 38 F.3d 1429, 1441 (7th Cir. 1994), as holding that expenses for copies made solely for the convenience of counsel or the litigant's own use are not recoverable. Haroco does not so hold.
Lee also cites M.T. Bonk Co. v. Milton Bradley Co., 849 F.2d 1404, 1410 (7th Cir. 1991) for the proposition that copying costs may be disallowed when there is no indication whether the charges were in connection with pleadings, correspondence or other documentation in the case or were for USF G's counsel's own convenience. Again, the case does not support Lee's contention.
Lee asserts that "the majority of USF G's requests for copies are without any reference or description as to what the copy charges were incurred for or whether they are related to this case" and that "Lee cannot discern whether the copy charges were for USF G's counsel [sic] own convenience."
Lee further objects to $10,649.12 of the $31,842.09 copying costs on the ground that USF G has not substantiated that these costs were for copies of papers necessarily obtained for use in the case. Lee specifically objects to the following costs:
Date Invoice Description Amount 9/27/99 10480 Outside Document 601.05 Reproductions Complex 10/8/99 10480 Outside Document 654.21 Reproductions Complex 10/25/99 10480 Outside Document 101.40 Reproductions Complex 11/8/05 CC-14004 Copying and 132.21 binding of various documents 11/28/06 CC-144108 Heavy Litigation 276.77 Copies 11/30/06 282303-1 Document copy 138.03 1/18/07 CC-26311 Heavy Litigation 212.25 Copies 1/11/07 CC-26132 Medium Litigation 416.75 Copies 12/20/06 CC-25698 Heavy Litigation 71.45 Copies 12/29/06 CC-25852 Medium Litigation 261.88 Copies 12/30/06 CC-25864 Medium Litigation 792.45 Copies 12/31/06 CC-25891 Medium Litigation 517.91 Copies 1/9/07 CC-26105 Heavy Litigation 149.22 Copies 2/2/07 23849 Heavy Litigation 354.80 Copies 2/2/07 9514 Printing Costs 1,028.30 2/5/07 9517 Imaging, Printing 381.97 CD creation 2/5/07 9521 Imaging, Printing 109.10 CD creation 2/6/07 9526 Imaging, Printing 110.22 CD creation 2/8/07 9536 Imaging, Printing 138.26 CD creation 2/15/07 29460 Messenger Service 153.00 to Secretary of State 2/16/07 24039 Heavy Litigation 170.68 Copies 2/25/07 CC-26476 PDF, CD creating, 51.00 Blowbacks 1/30/07 29314 Messenger Service 294.70 Dept. of Assessment and Taxation for USF G corporate records 1/31/07 Certificate of 40.00 Status via Internet of USF G 1/19/07 Expedited copies 79.00 of Articles of Incorporation of USF G 2/27/07 466131 Meeting with 390.00 Bruce Smyth to get case overview and discuss options for graphics (2 hrs @ $195/hr) 2/2/07 466131 Prepared first 780.00 draft of graphics and scanned key documents for use in slides (4 hrs @ $195/hr) 2/2/07 466131 Met with B. Smyth 195.00 to review graphics (1 hr @ $195/hr 2/2/07 466131 Continued work on 195.00 slides (1 hr @ $195/hr) 2/2/07 466131 Met at client's 877.50 office to revise graphics; continued work back at office (4.5 hrs @ $195/hr) 2/2/07 466131 GoPal revised 395.00 slides per client's notes 2/2/07 466131 Revised 585.00 slides/timeline (3 hrs $195/hr) In response, USF G relies on Mr. Smyth's Declaration:
17. All of the copying and exemplification costs set forth in Exhibit 5 were incurred by the counsel for USF G and American Specialty in connection with the litigation of the case. The `litigants,' American Specialty and USF G, are located in Indiana and the East Coast and have their own copying facilities for their own use. The costs of copying in-house at Charlston, Revich Wollitz LLP and through outside vendors, where necessary, were incurred to obtain copies of documents from Lee Investments, Rexford Properties, Aon Risk Services, GAB and Diana Conley and providing service and filing copies regarding the various and numerous motions filed by USF G and American Specialty and in opposition to Lee's various motions. . . .
18. Although Lee challenges the copy charges as improperly including fees paid to experts for intellectual efforts in assembling and preparing the copies, the costs sought are at the in-house rate of $.10 per page or the actual charges of the copy service vendors for the physical preparation and duplication of documents.
19. Exhibit 5 also includes the cost of obtaining certified copies of the articles of incorporation of USF G from the Maryland Department of Assessment and Taxation to establish that USF G was in fact incorporated in the State of Maryland. Although the status of incorporation of USF G in the State of Maryland was determined from reliable computerized research records, Lee refused to accept that computerized information and required USF G to incur the expenses of obtaining articles of incorporation on an expedited basis and obtain copies.
20. Exhibit 5 also included sums included for the preparation of a timeline of events utilized in USF G's opening and closing statements and referred to during the trial and provided to the jury as well as for the preparation of graphics setting forth the relations of the parties from Paulson Reporting. USF G has sought recovery only for the costs of the expenses utilized to prepare and revise the presentation slides and subsequently [sic] documentary timeline in the sum of $3,412.50, and not the full expenses of that vendor.
21. Although Lee objects to the in-house charges for copies, the charges that reflect the copying costs which were in fact charged to USF G and American Specialty in this matter, for copies of documents produced, pleadings, motions, service copies and exhibits. The largest portion of the inhouse copy charges were incurred in the filing and service of motions, pleadings and deposition designations with this Court and filings and exhibits utilized during the jury trial. Thus, large charges were incurred with the pre-trial motions including USF G's motion in limine to resolve the case, motions to strike USF G's affirmative defenses and its motion to dismiss the counterclaim of Rexford Parties. See charges dated 9/28/2006 for $343.00 and 10/30/2006 for $960.00 (for a total of $1,303.00).
22. The next large group of charges centers on the designation of deposition transcripts, the preparation of drafts and responses regarding the pretrial order and the briefing in support of and oppositions to almost 40 motions in limine. See in-house charges dated 12/27/2006 for $202.40, $217.70, $448.70, and $12.80 (for a total of $886.60). The next grouping of charges for in-house copies all took place for work shortly before the trial and includes copies of trial exhibits, trial briefs and copies of deposition transcripts. See charges dated 1/29/2007 for $10.00, $155.30, $231.70, $6.80, $553.10, $2.00 and $1652.40 and charge dated 2/28/2007 for $906.50 (for a total of $3,517.80). As a result, the in-house copying charges in connection with the jury trial total $5,707.40 alone.
23. The final large grouping of costs were incurred in connection with the April 4-6, 2007 bench trial, the preparation of proposed findings of fact and conclusions of law and the responses to Lee's various motions to amend the judgment and for new trial. See in-house copy charges dated 3/28/2007 for $294.60 and 4/26/2007 for $289.40 (for a total of $584.00).
24. Although Lee contends that various of the changes of the outside vendors could have been used for other purposes, the records of those invoices demonstrates that such costs were in fact incurred in obtaining documents from third parties in the case or for trial. While in some circumstances, the charges or billing invoices do not set forth the specific documents copied, other available information establishes that the copies were necessarily made in and for the litigation in the case. For example, the entries for October 8, 1999 and October 25, 1999 for outside document reproductions, were incurred at the time I worked on the production of documents for USF G to Lee and reviewed documents produced by Lee.
25. Other document copying costs for outside services, such as those for November 8, 2005 and November 28, 2006, December 20, 29, 30 and 31, 2006, were ordered by my legal assistants at the time, Carsi Beechler and Anna Tom. Other charges, dated January 18, 2007 and January 9, 2007, reference documents bearing a `U' prefix, the prefix utilized for USF G trial exhibits in exchanges of documents among the parties. The entries for January 11, 2007 were ordered by the paralegal assigned only to the trial of the case, Tom Hayden. One charge, dated February 2, 2007, was a copy charge for GAB Robbins documents by another attorney in this office, Chad Wooten, in connection with documents obtained for use at trial. The invoices for February 2, 5, 6, and 8, 2007 were costs of copying in connection with the trial of this matter ordered by the temporary trial assistant, Jan Williams, located out of the temporary Fresno office utilized by USF G's counsel during the pendency of the trial.
The litigation involved an extended time period, a construction project, and an injured employee who incurred over $1,000,000 in medical expenses. There were three sides to the case and a large volume of documents. Because the copying costs were limited to 10¢ per page and all parties needed voluminous documents to prepare for and to try the case, the copying costs have not been shown to unnecessary or excessive. These costs are allowed.
USF G is awarded copying costs in the amount of $31,842.09.
E. OTHER COSTS.
Lee objects to $9,070.50 of the $14,335.50 of "other costs" listed on the bill of costs. These costs are expert witness fees of Arthur Levine on April 25, 2006 ($2,655.00), June 2, 2006 ($2,065.00), June 20, 2006 ($3,613.00, and September 9, 2006 ($737.50). Lee asserts that Dr. Levine was not a court-appointed expert nor was he authorized pursuant to any statute and that these costs should be entirely disallowed. See 28 U.S.C. § 1920(6); Crawford Fitting Co., supra, 482 U.S. at 442.
In response, USF G relies on Mr. Smyth's Declaration:
24. USF G and American Specialty also seek the recovery in the interest of justice of all, or at least part, of the expert witness fees paid to Arthur Levine for his deposition testimony, a sum which totaled $9,071.25. In the case, USF G and American Specialty were unfairly forced to incur these fees to take extremely lengthy depositions of Dr. Levine necessitated by his repeated changes to his testimony and his lengthy, exhaustive and exhausting testimony about topics which were not properly the subject of expert testimony. In the limited circumstances when such testimony might be admissible, Dr. Levine's testimony was so obviously biased and lacking in reasonable foundation that it had no probative value. Most of the topics of Dr. Levine's testimony were excluded by this Court on the motion in limine of USF G and American Specialty. In the limited areas where Dr. Levine did testify, his testimony was inherently unbelievable and involved simply the biased taking of a side in litigation rather than appropriate testimony of an expert. USF G respectfully request the award of all or at least a portion of the expert witness fees they were compelled to pay in order to elicit largely inadmissible, biased and inherently unbelievable testimony of Dr. Levine.
USF G cites no authority permitting the Court to award these costs in the interests of justice and none has been found. Crawford Fitting and Section 1920(6) preclude allowance of these other costs. These costs are disallowed.
CONCLUSION
For the reasons stated, USF G's Bill of Costs is taxed at the amount of $78,936.94.
IT IS SO ORDERED.