Intercontinental Great Brands LLC v. Kellogg N. Am. Co.
| Decision Date | 26 January 2016 |
| Docket Number | Case No. 13 C 321 |
| Parties | INTERCONTINENTAL GREAT BRANDS LLC, Plaintiff, v. KELLOGG NORTH AMERICA COMPANY, KELLOGG USA INC., KEEBLER COMPANY, KEEBLER FOODS COMPANY, and KELLOGG SALES COMPANY, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Intercontinental Great Brands LLC (IGB, formerly Kraft Foods Global Brands LLC) sued Kellogg North America Company, Keebler Foods Company, and affiliates (collectively referred to as Kellogg), alleging that Kellogg manufactures products that infringe a patent owned by IGB. The Court granted summary judgment in favor of Kellogg in August 2015. See Intercontinental Great Brands LLC v. Kellogg N.A., No. 13 C 321, 2015 WL 4638032 (N.D. Ill. Aug. 3, 2015). Kellogg has submitted a bill of costs seeking recovery for numerous expenditures made in this litigation. IGB has objected to the majority of the costs requested. The Court upholds some of IGB's objections and overrules others.
Kellogg has moved for over $100,000 in costs. Federal Rule of Civil Procedure 54(d) states that "costs—other than attorney's fees—should be allowed to the prevailing party" unless "a federal statute, these rules, or a court order provides otherwise." Fed. R. Civ. P. 54(d). A court or clerk of court "may tax as costs" several different categories of expenses, including "[f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case." 28 U.S.C. § 1920(2). Courts may also tax "[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case." Id. § 1920(4). "There is a presumption that the prevailing party will recover costs, and the losing party bears the burden of an affirmative showing that taxed costs are not appropriate." Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 864 (7th Cir. 2005). The Supreme Court, however, has held that the "scope of taxable costs" is "narrow," and that such "costs are limited to relatively minor, incidental expenses as is evident from § 1920." Taniguchi v. Kan Pac. Saipan, Ltd., 132 S. Ct. 1997, 2006 (2012).
IGB does not dispute that Kellogg is the prevailing party for purposes of Rule 54(d), but it opposes many of Kellogg's specific requests.
"Fees for printed or electronically recorded transcripts necessarily obtained for use in the case" are recoverable under 28 U.S.C. § 1920(2). Kellogg originally sought $18,114.75 for costs related to procuring various deposition transcripts, but it has since revised its request to $15,156.75 (as explained further below). IGB takes issue with three items within this broad category. First, IGB contends that Kellogg should not be reimbursed for video recordings of the depositions of Jason Beach, Jon Birmingham, Walter Bratic, Patrick Daugherty, Rachel Friedstat, Karen Keeder, Paul Pezzoli, andKeith Vorst. Second, IGB argues that for many of the depositions that were taken, Kellogg's quoted per-page rate of reimbursement for stenographic transcripts is too high because it exceeds the rate set by the Judicial Conference. Third, IGB says that it is inappropriate for Kellogg to request reimbursement of costs associated with having deposition transcripts shipped to defense counsel. (IGB also voiced opposition to Kellogg's request to recover $2,913.90 for producing deposition exhibits, but Kellogg has since withdrawn its request for these costs.)
As explained below, the total amount Kellogg can recover for deposition-related expenses is $13,359.45: $3,668.80 for video expenses, and $9,690.65 for printed transcripts.
A prevailing party may recover costs for both a paper transcript and a video recording of a deposition, but only when it was "reasonable and necessary" for counsel to obtain both. See Little v. Mitsubishi Motors N. Am., Inc., 514 F.3d 699, 702 (7th Cir. 2008). IGB argues that video recordings were redundant for every witness except Carl-Olaf Norlin because court reporters transcribed every deposition, the videos were not used at summary judgment, and the deponents would have been available to testify as witnesses at trial. Kellogg counters that video recordings were reasonable and necessary for all of these depositions.
First, Kellogg contends that video of the Birmingham deposition was necessary and reasonable because he is a California resident who was outside of the Court's subpoena power. The Court agrees. Birmingham was outside the subpoena power of the Court and therefore could not have been compelled to testify at trial. It wasaccordingly reasonable to request both printed transcripts and a video recording of his deposition. See Merix Pharma. Corp. v. Clinical Supplies Mgmt., Inc., 106 F. Supp. 3d 927, 943 (N.D. Ill. 2015) (Kennelly, J.). IGB will be taxed $533.80 for this video cost.
Second, Kellogg cites Fabiyi v. McDonald's Corp., No. 11 C 8085, 2014 WL 2819007, at *3 (N.D. Ill. June 23, 2014), to support its argument that obtaining a video recording was necessary and reasonable for the Daugherty, Pezzoli, and Vorst depositions because the parties relied on their testimony at summary judgment. This argument lacks merit. For one thing, Kellogg misreads Fabiyi. In that case, it was the cost of procuring printed transcripts, not video recordings, that was deemed reasonable due to the parties' reliance on testimony at summary judgment. Id. More importantly, it is not true that video is necessary and reasonable for purposes of taxing costs any time a party relies on testimony for which it has both video recordings and paper transcripts. Both parties cited repeatedly to pages of printed transcripts from the Birmingham, Daugherty, Pezzoli, and Vorst depositions, but neither party submitted videos of these depositions for the Court to review at summary judgment.
That aside, it was nonetheless reasonable and necessary for Kellogg to procure the video recordings from the Daugherty and Pezzoli depositions—in addition to the video recordings from the Beach, Friedstat, and Keeder depositions—because IGB's counsel ordered these depositions and obtained video recordings. Kellogg has offered IGB's notices of deposition for these five witnesses, all of which provided for video recording. Top Tobacco, L.P. v. N. Atl.Operating Co., No. 06 C 950, 2007 WL 1149220, at *7 (N.D. Ill. Apr. 17, 2007) (Kennelly, J.). IGB itself ordered these depositions and obtained video recordings, so it may be taxed the costs Kellogg incurred to keep pace. Chicago Bd. of Options Exch., Inc. v. Int'l Sec. Exch., LLC, No. 07 CV 623, 2014 WL 125937, at *5 (N.D. Ill. Jan. 14, 2014). The Court will permit Kellogg to recover these video recording costs: $323.75 for the Beach deposition, $230.00 for the Daugherty deposition, $478.75 for the Friedstat deposition, $460.00 for the Keeder deposition, and $1,126.25 for the Pezzoli deposition (plus $516.25 for the Norlin deposition, which IGB does not contest).
Kellogg does not explain why it should be reimbursed for the cost of obtaining a video recording of the Bratic deposition, and (as explained above) Kellogg offers insufficient justification for seeking costs for the video recording from the Vorst deposition. Because obtaining video recordings of these depositions was neither reasonable nor necessary, the Court will not tax IGB for the $532.47 Kellogg spent on Bratic's deposition tape and the $478.75 it spent on Vorst's deposition tape.
Kellogg originally sought to recover a total of $9,754.75 for transcripts from nine depositions. "[D]eposition costs (including transcripts) are authorized under § 1920(2) as stenographic transcripts" and are therefore recoverable. Cengr v. Fusibond Piping Sys., Inc., 135 F.3d 445, 454 (7th Cir. 1998). The cost of a transcript or deposition that was "necessarily obtained" may be taxed, but the cost "shall not exceed the regular copy rate as established by the Judicial Conference of the United States . . . ." Local Rule 54.1(b) (N.D. Ill.).
In response to Kellogg's original bill of costs, IGB argued that Kellogg could onlyrecover costs at the regular copy rate, even where the court reporters' actual rates exceeded the rate set by the Judicial Conference. This is certainly true for the depositions that Kellogg arranged, because generally speaking, "Judicial Conference rates apply to deposition charges by private court reporters." Cengr, 135 F.3d at 456. In its adjusted bill of costs (submitted in reply), Kellogg acknowledged as much and subtracted $44.10 from the amount requested for the Birmingham deposition, reducing that deposition's total cost from $504.00 to $459.90. Kellogg continues to seek full reimbursement for the cost of transcripts from the depositions that IGB arranged.
The Seventh Circuit has suggested that Judicial Conference rates do not apply "when the party who must bear the costs selected the court reporter—in other words, whoever picked the reporter can't later object to that reporter's rates." Montanez v. Simon, 755 F.3d 547, 558 (7th Cir. 2014), cert. denied sub nom. Montanez v. Chicago Police Officers FICO, 135 S. Ct. 459 (2014); see also Haroco, Inc. v. Am. Nat'l Bank & Trust Co. of Chicago, 38 F.3d 1429, 1441 (7th Cir. 1994) (); Merix Pharm. Corp., 106 F. Supp. 3d at 942; Engate, Inc. v. Esquire Dep. Servs. LLC, No. 01 C 6204, 2006 WL 695650, at *3 (N.D. Ill. Mar. 13, 2006) (Kennelly, J.). After reviewing the invoices listing Kellogg's payments for transcripts of depositions taken by IGB, with private court reporters chosen by...
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