Summary
stating that "[i]f [parties] want that impeachment `edge,' . . . they must pay for it themselves"
Summary of this case from BCS Insurance Company, Inc. v. Guy Carpenter CompanyOpinion
No. 99 C 3957
January 14, 2002
MEMORANDUM OPINION AND ORDER
The case is before the Court on defendants' second amended bill of costs. For the reasons set forth below, the Court finds that defendants are entitled to recover under Federal Rule of Civil Procedure ("Rule") 54(d) costs in the total amount of $5741.87.
Discussion
In their request for deposition and hearing transcript costs, defendants include charges associated with videotaping plaintiffs deposition. As plaintiff points out, there is statutory authority for the recovery of costs for "stenographic transcript[s]," but not for videotapes, of depositions. See 28 U.S.C. § 1920(2). Even if the statutory phrase "stenographic transcript" encompasses videotapes, defendants could still not recover these costs because they have not demonstrated that they were necessary to their case. Defendants say that they videotaped plaintiffs deposition to "better preserve the record for future matters before the Court," given plaintiffs counsel's "generally unprofessional [conduct]" and because use of a videotaped deposition "is an extremely effective method for impeaching a party during trial." (Supplemental Aff. M. Elizabeth Winters Supp. Second Am. Bill Costs at 2-3.) Neither reason is persuasive. With the exception of gestures, a written deposition transcript would have captured all of plaintiffs counsel's comments and conduct, professional or otherwise, as accurately as a videotape. In addition, a written transcript would have provided defendants with the same amount of impeachment material as a videotape. It may be, as defendants assert, that impeachment by videotape has more of an impact than impeachment by transcript. If defendants want that impeachment "edge," however, they must pay for it themselves. Consequently, all costs associated with videotaping plaintiffs deposition, a total of $1334.00, are disallowed.
This amount represents $953.25 for the July 12, 2000 session ($195.00 for the first hour of videotaping + $546.25 for additional attendance + $43.50 for tape stock + $157.50 for copies of the videotaped deposition + $11.00 premium charge for expedited delivery) + $380.75 for the October 11, 2000 session ($195.00 for the first hour of videotaping + $118.75 for additional attendance + $14.50 for tape stock + $52.50 for copies of the videotaped deposition).
Defendants also seek to recover costs for the transcripts of thirteen other depositions. Defendants say that they used excerpts from all of the depositions, except those of Dawn and Timothy Howard, in connection with their summary judgment motion. Plainly, the eleven depositions defendants used for that motion were necessary to their case. And, because the costs they seek comport with Local Rule 54.1, they are reasonable.
Defendants have not, however, demonstrated that the Howard depositions were necessary to their case. Though defendants did not use the transcripts, that fact does not necessarily preclude them from recovering these costs. If defendants can show that they reasonably believed, at the time they ordered the transcripts, that the testimony was necessary to their case, the costs are recoverable. Defendants have not made the requisite showing. Defendants do not identify the subject of the Howards' testimony or explain how it fit into their case. In fact, the only thing defendants say about these depositions is that they played no role in defendants' summary judgment motion. Because defendants have not demonstrated that the Howard depositions were necessary to their case, the costs associated with them, a total of $288.30, are disallowed.
This figure represents $81.50 for the transcript of Dawn Howard's deposition + $206.80 for the transcript of Timothy Howard's deposition.
Defendants also seek to recover the cost of a transcript of hearing before Magistrate Judge Bobrick. Defendants ordered the transcript because they "considered referencing [in their summary judgment papers] . . . boorish comments" made during that hearing by plaintiff's counsel. (Supplemental Aff. M. Elizabeth Winters Supp. Second Am. Bill of Costs at 4.) As defendants admit, however, those comments, were not relevant to the substantive issues in the summary judgment motion. (See id. at 4 (stating that defendants did not include the comments in their summary judgment papers because they would have "cloud[ed] the issue").) Because the hearing transcript was not necessary to their case, defendants may not recover the costs, a total of $175.00, associated with it.
In sum, the Court finds that the total amount of deposition transcript costs that defendants may recover under Rule 54(d) is $4766.16.
This figure represents $678.80 for the 7/12/00 Rockett deposition ($652.50 for the transcript + $20.80 for exhibits + $5.50 for regular delivery) + $336.00 for the McGaw deposition ($321.00 for the transcript [107 pages x $3.00 per page] + $15.00 repository fee) + $304.05 for the Gakhal deposition ($289.05 for the transcript + $15.00 repository fee) + $310.00 for the Webster deposition ($285.00 for the transcript [95 pages x $3.00 per page] + $10.00 signature fee + $15.00 repository fee) + $34.30 for copies of the McGaw deposition exhibits + $427.50 for the Sutton deposition ($340.75 for the transcript + $71.75 for copies of the exhibits + $15.00 repository fee) + $554.70 for the Kielbasa deposition ($522.00 for the transcript [174 pages x $3.00 per page] + $10.00 signature fee + $7.70 for copies of the exhibits + $15.00 repository fee) + $238.80 for the 10/11/00 Rockett deposition ($232.00 for the transcript + $1.30 for exhibits + $5.50 for regular delivery) + $30.00 for the Hannah deposition ($15.00 for the transcript [5 pages x $3.00 per page] + $15.00 repository fee) + $266.45 for the Grochowski deposition ($251.45 for the transcript + $15.00 repository fee) + $33.80 for the Parnham deposition, part one ($18.80 for the transcript + $15.00 repository fee) + $137.20 for the Parnham deposition, part two ($122.20 for the transcript + $15.00 repository fee) + $616.60 for the Telgen deposition ($601.60 for the transcript + $15.00 repository fee) + $611.90 for the Searing deposition ($596.60 for the transcript + $15.00 repository fee) + $25.36 for copies of the Searing deposition exhibits ($24.15 for the exhibits + $1.21 for postage) + $160.70 for the Gallagher deposition ($145.70 for the transcript + $15.00 repository fee).
Defendants also seek to recover costs for photocopies. As we noted in our opinion on defendants' amended bill of costs, only costs for copies of discovery, motions and other materials that were "actually prepared for use in presenting evidence to the court," are recoverable. McIlveen v. Stone Container Corp., 910 F.2d 1581, 1584 (7th Cir. 1990) (internal quotation marks and citation omitted). Defendants say they spent $975.71 for copying and Bates stamping documents they produced in discovery. (Supplemental Aff. M. Elizabeth Winters Supp. Second Am. Bill Costs at 5.) Those costs are reasonable and recoverable.
According to defendants, that leaves $3,219.07 in charges for in-house copying. (Id.) Defendants have made no effort to demonstrate that these costs are reasonable or to segregate those that are recoverable from those that are not. They have not, for example, indicated what price was charged per page, despite our explicit instruction to do so. Moreover, though they admit that they made copies solely for attorney convenience and say they "are willing" to reduce their request by twenty-five percent to account for that fact, they do not provide any basis for us to conclude that twenty-five is the appropriate percentage. They do not, for instance, tell us how many lawyers worked on this case or whether it was their habit to make copies of all correspondence, pleadings, etc., for each lawyer. Further, though the photocopy charges are dated, defendants have made no attempt to correlate charges with the dates discovery was served, documents were produced or papers were filed with the court. Defendants' arbitrary and unsupported reduction in their copying cost request does not satisfy their burden under 28 U.S.C. § 1920. Defendants' in-house photocopy request is, therefore, denied in its entirety.
Conclusion
For the reasons set forth above, defendants bill of costs and amended bill of costs are denied and their second amended bill of costs is granted in part and denied in part. The Court finds that defendants are entitled to recover under Rule 54(d) $4766.16 for deposition transcripts costs and $975.71 for photocopy costs. Judgment will be entered in defendants' favor on their second amended bill of costs in the total amount of $5741.87.