United States District Court, D. Maine
James Gehrman, et. al. Plaintiffs,
Twin Rivers Paper Company, Defendant.
ORDER ON BILL OF COSTS
parties are entitled to move for an award of costs pursuant
to Federal Rule of Civil Procedure 54(d)(1), which provides
in pertinent part: “[u]nless a federal statute, these
rules, or a court order provides otherwise, costs . . .should
be allowed to the prevailing party.” As determined by
the Court, Plaintiffs are the prevailing party in this case.
Judgment (ECF No. 82). Those expenses that may be
taxed are specified in 28 U.S.C. § 1920, but the costs
must be “necessarily incurred in the case”
pursuant to 28 U.S.C. § 1924. Plaintiffs seek costs in
the total amount of $5, 174.65 for fees of the Clerk, service
fees, transcript fees, witness fees, and docket fees.
Bill of Costs, (ECF No. 83). Defendant has made no
objection to the Bill of Costs; therefore, the Clerk of
Court, having made an independent review of Plaintiffs'
Bill of Costs, hereby taxes costs against Defendant in the
total amount of four thousand eight hundred fifty-one dollars
and fifteen cents ($4, 851.15). Certain claimed costs are
hereby excluded as explained herein.
fees are taxable to the extent that they were
“necessarily obtained for use in the case.” 28
U.S.C. § 1920(2). In this case, Plaintiffs have
requested fees for court reporter transcripts of seven
depositions: those of Ronald Guay, James Gehrman, Michael
Reider, Kim Lavoie, Glen Saucier, Adam Levy and a videotaped
desposition of Gehrman. They have also requested fees for a
trial transcript. Plaintiffs did not support their claim for
these transcript fees with a memorandum and the Defendant has
not objected to their claim.
upon a review of the docket in this case, the trial
transcript was necessarily obtained for use in post-trial
briefs, and all of the depositions, with the exception of the
Gehrman videotaped deposition, were used for pretrial motion
work, trial preparation or trial proceedings. Therefore, six
of the seven transcripts obtained in this case were
reasonably necessary for use in the case and are taxable.
Templeman v. Chris Craft Corp., 770 F.2d 245, 249
(1st Cir. 1985) citing SCA Services, Inc. v.
Lucky Stores, 599 F.2d 178 (7th Cir.1979).
six of the seven depositions were necessarily obtained, some
of the associated costs for the depositions will not be
taxed. Postage, emailing, shipping and handling costs for the
delivery of depositions are considered ordinary business
expenses that may not be charged as taxable costs in relation
to obtaining transcripts. Alexander v. CIT Technology
Financing Services, Inc., 222 F.Supp.2d 1087 (N.D. Ill.
2002); See also Maurice Mitchell Innovations, L.P. v.
Intel Corp., 491 F.Supp.2d 684 (E.D. Tex. 2007) and
Treaster v. HealthSouth Corp., 505 F.Supp.2d 898 (D.
Kan., 2007). Thus, Plaintiffs' costs for deposition
transcripts will be reduced by $23.50, the total amount of
postage and handling fees charged on three of the deposition
bills (Guay, Reider, and Lavoie/Saucier/Levy delivery).
noted above, Plaintiffs have sought costs for both the
stenographic recording and the videotaped recording of James
Gehrman's depositions. Bill of Costs, (ECF No.
83-3, pp. 1, 4 & 8). According to Exhibit 3 of the
Plaintiffs' Bill of Costs, D'amico Gershwin charged
Plaintiffs $300 for the videotaped videoconference deposition
of Gehrman. (ECF No. 83-3, pp. 1 & 8).
Rule 30(b) of the Federal Rules of Civil Procedure authorizes
depositions to be recorded by non-stenographic means,
including videotaping, the allowance under 28 U.S.C. §
1920(2) for the taxation of transcript fees has been
construed to include costs associated with videotaped
depositions. Tilton v. Capital Cities/ABC, Inc., 115
F.3d 1471 (10th Cir. 1997); Commercial Credit Equipment
Corp. v. Stamps, 920 F.2d 1361 (7th Cir. 1990);
Accord Freeman v. National Railroad Passenger Corp.,
1994 WL 448631 (D. Mass. 1994).
Templeman, the First Circuit ruled that deposition
costs should be taxed if they are introduced at trial, but
that “if special circumstances warrant it, ”
district courts could tax costs for depositions not used at
trial. Templeman, 770 F.2d at 239. However, the
plain language of § 1920(2) dictates that transcripts
obtained by the prevailing party should be “necessarily
obtained for use in the case.” 28 U.S.C. §
1920(2). This language focuses the Court's discretionary
decision-making power on how the video transcript was used in
the case, i.e. whether it had a legitimate use independent
from or in addition to the stenographic version. Cf.
Meredith v. Schreiner Transport, Inc., 814 F.Supp. 1004
(D. Kan. 1993). In this case, the stenographic deposition of
James Gerhman was clearly used for trial and for other motion
work, but there has been no assertion by Plaintiffs that the
videotaped deposition was also necessary for use in the case.
See Kalman v. Berlyn Corp., 1989 WL 112818 at 2 (D.
Mass. 1989) [saying, “…it is one thing to tax
the cost of a deposition which might not be used at trial, it
is another thing to tax the cost of both a deposition
and a videotaping.” (emphasis in original)].
Where Plaintiffs are silent and have not asserted that the
videotaped deposition was necessary for impeachment, for use
as a demonstrable or because the witness would be unable to
attend trial, the Plaintiffs have not established the
necessity of the videotaped deposition, so the $300 cost for
it will be disallowed.
The Clerk of Court hereby taxes costs in favor of Plaintiffs
in the amount of four thousand eight hundred fifty-one