United States District Court, D. Maine
MATTHEW POLLACK, et al. Plaintiffs,
REGIONAL SCHOOL UNION No. 75 Defendant
ORDER ON BILL OF COSTS
Rule of Civil Procedure 54(d)(1) entitles prevailing parties
to an award of costs, saying the following 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 and
affirmed by the First Circuit Court of Appeals, Defendant is
the prevailing party in this case. See Amended
Judgment, ECF No. 356 and Judgment of USCA, ECF
No. 362. Specific expenses that may be taxed are outlined in
28 U.S.C. § 1920, but the expenses must be
“necessarily incurred in the case” pursuant to 28
U.S.C. § 1924. Defendant seeks costs in the total amount
of $7, 174.29 for transcript fees and witness fees. Bill
of Costs, ECF No. 364 and Affidavit, ECF No.
366. Plaintiffs have objected to parts of the claimed
transcript expenses. Response to Bill of Costs, ECF
No. 367. Having reviewed both parties filings, including the
supporting documentation filed as part of Defendant
counsel's affidavit, and having made an independent
review of Defendant's Bill of Costs, the Clerk of Court
hereby taxes against Plaintiffs the total amount of four
thousand one hundred ninety-two dollars and eighty-nine cents
($4, 192.89). There being no objection, the witness fees
claimed in this case will be taxed; but other certain claimed
costs are excluded as explained herein.
Costs - Shipping and Handling
claimed costs include a total of $95 for the shipping or
handling of some transcripts claimed in this case. See
Attachment to Affidavit, ECF No. 366-1, pp.
2, 6, 8, 10, 12, 14, 16 & 18. Postage, shipping and
handling costs for depositions are considered ordinary
business expenses that are not permitted by this Court and
have not been 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) and Smith v Tenet Healthsystem SL, Inc., 436
F.3d 879, 889 (8th Cir. 2006). 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).
Therefore, $95 will be deducted from Defendant's
transcript cost claim.
charges for word indices in the transcript bills for Ricci,
Quiron, and Pollack, totaling $90, will not be ordered
because such items are considered “items for the
convenience of counsel.” Burton v. R.J. Reynolds
Tobacco, Co., 395 F.Supp.2d 1065 at 1080 (D. Kan. 2005);
Keweenaw Bay Indian Community v. Rising, 2005 WL
3535124 at *2 (W.D. Mich. 2005); and Charles v.
Sanchez, 2015 WL 11439074 at *12 (W.D. Tex. 2015).
Costs - Video Depositions
fees are specifically permitted to be taxed by statute, to
the extent that they were “necessarily obtained for use
in the case.” 28 U.S.C. § 1920(2). Also, the First
Circuit has ruled that deposition costs should be taxed if
the depositions are introduced in evidence or used at trial,
and, in other instances, that it “is within the
discretion of the district court to tax deposition costs if
special circumstances warrant it.” Templeman v.
Chris Craft Corp., 770 F.2d 245, 249 (1st Cir. 1985).
Since 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); and
Accord Freeman v. National Railroad Passenger Corp.,
1994 WL 448631 (D. Mass. 1994).
case, the parties seem to agree that the transcripts of
Ricci, Quirion and Pollack were necessarily obtained but
Plaintiffs object to the taxation of both a
stenographic transcript and a videotape recording of these
three persons. Response to Bill of Costs, ECF No.
367, p. 2. As the Clerk has noted in the past, the plain
language requirement of 28 U.S.C. § 1920(2) focuses the
Court's discretionary, decision-making power on how the
video transcript was used in the case, i.e. whether the video
recording had a legitimate use independent from or in
addition to the stenographic transcript. Cf. Meredith v.
Schreiner Transport, Inc., 814 F.Supp. 1004 (D. Kan.
1993) and Miller v. National R.R. Passenger Corp.,
157 F.R.D. 145 (D. Mass. 1994). Defendant states that the
videotaped depostions “were obtained and utilized for
trial preparation and in anticipation of impeachment at
trial” and “for use at trial in the event [Ricci]
was unable to testify in person.” Response,
ECF No. 367, p. 3. Persuaded by Plaintiffs' response and
consistent with the Clerk's own record of decisions, the
Clerk finds that such reasons for video depositions in
addition to a stenographic ones are insufficient to justify
the taxation of both transcripts, especially where the video
recordings were, in fact, not used in this case and
stenographic transcripts alone could have been used for the
stated purpose. 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)]. Therefore, Defendant's claimed costs will be
reduced by a total of $1, 995 ($275 not taxed for the Ricci
video; $980 not taxed for the Quirion video; and $760 not
taxed for the Pollack video).
Costs - Expedited
of its transcript costs related to the deposition of Jane
Quirion, Defendant claims $456.75 for an
“expedite” fee. Attachment to Affidavit,
ECF No. 366-1, p. 10; Bill of Costs, ECF No. 364;
and Memo, ECF No. 365. Following case law from other
circuits, this Court has generally held that an expedited
charge on a transcript represents an extra cost which is not
taxable unless prior court approval of the expedited rate has
been obtained or the special character or nature of the
litigation necessitated an expedited receipt. Fogleman v.
ARAMCO, 920 F.2d 278 at 286 (5th Cir. 1991). See
also Farmer v. Arabian American Oil Co., 379 U.S. 227
(1964); Sun Ship, Inc. v. Lehman, 655 F.2d 1311,
1318 n.48 (D.C. Cir. 1981) (overnight transcription of
depositions disallowed when purely for convenience of
counsel); Hill v. BASF Wyanotte Corp., 547 F.Supp.
348, 352, 353 (E.D. Mich. 1982) (no showing of need for
expedited transcript of deposition, and disallowing daily
transcript due to no prior court approval); and Norton v.
International Harvester Co., 89 F.R.D. 395 (E.D. Wis.
1981) (daily transcripts were "helpful" but a
"relative luxury" not necessary for trial). There
being no explanation for the necessity of such a charge, the
Clerk denies that portion of the deposition cost.
Costs - Trial Transcripts
claims $344.65 in transcript costs for rough draft trial
testimony of Plaintiffs Jane Quirion and Matthew Pollack.
Defendant states that the “transcripts for the direct
testimony of the named plaintiffs [were] obtained during
trial for preparation for cross examination and for
preparation for closing arguments.” Memo, ECF
No. 365, p. 3. Plaintiffs state that the necessity of these
transcripts has not been shown and that they were merely for
the convenience of counsel since Defendant counsel could have
taken “adequate notes of plaintiffs' testimony.
Response to Bill of Costs, ECF No. 367, p. 6. The
receipt of the Court Reporter indicates that the testimony
transcript was requested and produced on June 7, 2017, during
trial in this case. Affidavit, ECF No. 366, p. 20.
While the statute and case law create a strong presumption in
favor of taxing such costs against Plaintiffs, trial
transcripts obtained in this way are akin to daily
transcripts and must be “necessarily incurred, ”
pursuant to 28 U.S.C. § 1924. Whether the expense of
obtaining a transcript of trial proceedings-especially one
akin to a daily transcript-is taxable is largely dependent on
not only the necessity of the transcript but also if the case
was a complicated one, if the transcript was indispensable
and if the trial was long. Sperry Rand Corp. v. A-T-O,
Inc., 58 F.R.D. 132, 138 (E.D. Va. 1973); Advance
Business Systems & Supply Co. v. SCM Corp., 287
F.Supp. 143, 163 (D.Md.1968), aff'd, 415 F.2d 55 (4th
Cir. 1969), cert. denied, 397 U.S. 920, 90 S.Ct. 928, 25
L.Ed.2d 101 (1970); Kaiser Industries Corp. v. McLouth
Steel Corp., 50 F.R.D. 5 (E.D.Mich.1970); cf. Farmer
v. ARAMCO, 379 U.S. 227, 234, 85 S.Ct. 411, 415, 13
L.Ed.2d 248 (1964) (cost of daily transcript disallowed based
on district court's personal knowledge that this was not
a complicated or extended trial where lawyers were requested
to submit briefs and proposed findings).
case, it appears that the trial and the subject testimony was
neither especially long nor complicated to warrant a trial
testimony transcript to assist with cross examination and
preparation. Failing on those two prongs, the transcript
costs of Plaintiffs' testimony is denied as unnecessary.
See Norton v. International Harvester Co., 89 F.R.D.
395 (E.D. Wis. 1981) (daily transcripts were
"helpful" but a "relative luxury, " not
necessary for trial), and Cooke v. Universal Pictures,
Co., 135 F.Supp. 480, 481 (S.D. NY 1955) (trial
transcript denied as unnecessary where cross-examining party
exercised the privilege to question the plaintiff on
deposition and had the deposition available at trial).
Costs - Party & Employees
have objected to Defendant's claim for costs related to
the depositions of Defendant RSU 75 itself and its employees,
saying that those transcripts are not necessarily incurred
because the testimony of Defendant and its employees are
readily available to counsel without the need of a
transcript. Response to Bill of Costs, ECF No. 367,
p. 7. Plaintiffs cite two cases that seem to support the
proposition that, based on a lack of necessity, a party may
not be reimbursed for depositions of themselves or their
employees. Id. But this Court has commonly allowed
the taxation of depositions of parties when viewed as
necessarily obtained to support a motion-in this case, a
motion for summary judgment and other motions-or reasonably
obtained for some use related to trial preparation or
presentation at trial. Therefore, the Clerk will allow the
taxation of the depositions of RSU 75 and its employees where
there were used in the significant motion work of this case