Opinion
3-95-CV-1330-L
March 29, 2004
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to the District Court's orders of reference on February 20, 2004, came on to be heard Defendants' Conditional Motion for Leave to Extend Time for Defendants to File Bill of Costs filed on December 11, 2002, and Plaintiffs' Objection to Taxation of Costs filed on November 27, 2002, and the magistrate judge finds and recommends as follows:
1. Defendants' motion to extend time. In their objection filed on November 27, 2002, Plaintiffs argued that Defendants' costs should be denied because Defendants failed to file their bill of costs in conformity with the provisions of Local Rule 54.1 which requires that a party awarded its costs must file its bill of costs within 14 days after the subject judgment is entered by the clerk. It is undisputed that Defendants did not file their bill of costs until more than 50 days had elapsed from the entry of judgment.
The local rule took effect on September 1, 2002, and provided that it would apply to all subsequently filed cases and to then pending actions "insofar as just and practicable". See Special Order No. 2-54 (Emphasis added).
Since this action was filed several years before the effective date of Local Rule 54.1, the rule does not apply unless the court finds that it would be just and practicable to do so. Given the numerous pleadings, memoranda and depositions taken in this action it is rather clear that an extension of time requested prior to the expiration of 14 days after the judgment had been entered would have been granted. Moreover, Plaintiffs are in no way prejudiced if the court does not apply the rule to the instant case. Plaintiffs were put on notice that Defendants would seek to recover their costs and Plaintiffs filed their objection before the court awarded a specific amount of costs recoverable under 28 U.S.C. § 1920. Therefore, Defendants' motion to extend should be granted and the merits of Defendants' bill of costs and Plaintiffs' objections should be addressed.
2. Costs pursuant to 28 U.S.C. § 1920. a. Fees for court reporters services. A deposition is taxable as a cost so long as "the taking of the deposition is shown to have been reasonably necessary in light of the facts known to counsel at the time it was taken." Cooper Liquor. Inc. v. Adolph Coors Co., 684 F.2d 1087, 1099 (5th Cir. 1982). Ordinarily a party is not entitled to recover its costs for a copy of the deposition of a witness whom the party may call as its witness at trial. E.g. see Cypress-Fairbanks I.S.D. v. Michael F., 118 F.3d 245, 257-58 (5th Cir. 1997). While the deposition may be helpful to a party's counsel in preparation of the witness's anticipated trial testimony, such is more for the convenience of counsel rather than a cost which is reasonably necessary. An exception to this general rule exists when the deposition testimony is used to support the party's motion for summary judgment.
The customary practice is for a court reporter to provide the original deposition to the party who noticed the deposition with an additional complimentary copy. Since the party is not charged for the copy, nor have Defendants sought to recover for costs for copies of depositions for which they paid for the original, there is no basis for pro rating reporter fees between the original and a copy of such a deposition.
Finally, Defendants seek to recover costs for videotape copies and ASCII discs and associated costs. Such costs are not recoverable as costs under § 1920. See Mota v. University of Texas Houston Health Service Center, 261 F.3d 512, 529-30 (5th Cir. 2001).
The magistrate judge finds that Defendants' § 1920 costs for court reporter services should be reduced to the sum of $8,356.66.
b. Printing/copying expenses. Before a district court may tax costs for photocopies, it "must find that the copies for which costs are sought were necessarily obtained for use in the litigation. Moreover, the party seeking such costs must offer some proof of the necessity." Holmes v. Cessna Aircraft Co., 11 F.3d 63, 64 (5th Cir. 1994) (internal citations omitted). The district court is granted great latitude in making this determination. Id. Although it is not required that every photocopy be scrupulously accounted for, there must be "some demonstration that reproduction costs necessarily result from that litigation." Fogleman v. ARAMCO, 920 F.2d 278, 286 (5th Cir. 1991). Costs of photocopies that were presented to court either by order or as exhibits may be taxable if they were "necessarily obtained for use in the case." See Scroggins v. Air Cargo. Inc., 534 F.2d 1124, 1133 (5th Cir. 1976).
The evidence in support of this portion of Defendants' costs consists of the affidavit of P. Jefferson Ballew, a spread sheet identifying copying expenses and underlying invoices. I am of the opinion that Defendants are entitled to recover their costs for copying documents which Plaintiffs produced (See Copying expenses Items 1 — 7), costs for copying documents for Plaintiffs in response to discovery served on Defendants (Id. at 8-13 Items 8-12) and costs for copying documents used for motions and hearings (Id. at Items 30-39). On the other hand Defendants' support for their copying costs fail to adequately explain why copying expenses incurred with respect to documents obtained from the Haynes Boone law firm (Id. at 14-15), documents from the underlying lawsuit (Id. Items 16 and 17), copying of documents provided to experts and for mediation (Items 18-20), documents used for depositions (Items 21-29) and copies of deposition testimony, etc. (Items 40-45) were necessarily obtained for use in this litigation.
As the assigned magistrate judge I am quite familiar with the large number of motions filed by the parties and the lengthy pagination of the motions, briefs and exhibits thereto. Therefore, it is appropriate to take this familiarity with this case into account in assessing costs.
Therefore I find that Defendants' § 1920 costs for printing/copying expenses should be reduced to the sum of $15,878.66.
c. Other Costs. Defendants also seek recovery of fees for services of subpoenas effected by private process servers. Although some courts have found that such fees are recoverable, E.g. See Aflex Corp. v. Underwriters Laboratories, Inc., 914 F.2d 175, 179 (9th Cir. 1990);Arrambide v. Wal-Mart Stores, 33 Fed.Appx. 199, 203 (6th Cir. 2002), such private service costs are not recoverable under § 1920 in this Circuit.See Cypress-Fairbanks I.S.D. v. Michael F., 118 F.3d 245, 257 (5th Cir. 1997).
Therefore, Defendants' fees for such costs should be disallowed.RECOMMENDATION:
For the foregoing reasons it is recommended that Plaintiffs' objection to taxation of costs be sustained in part as follows:
The District Court should order Defendants to file an amended bill of costs under the following items in the amounts reflected:
Fees for court reporters services $8,356.66 Printing/copying expenses 15,878.66 Fees for witnesses 120.00 $24,355.32
In all other respects it is recommended that Plaintiffs' objections be denied.