SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC
| Decision Date | 05 November 2013 |
| Docket Number | CIVIL ACTION NO. 1:10CV-00122-JHM |
| Parties | SCA HYGIENE PRODUCTS AKTIEBOLAG and SCA PERSONAL CARE, INC. PLAINTIFFS v. FIRST QUALITY BABY PRODUCTS, LLC, FIRST QUALITY HYGIENIC, INC., FIRST QUALITY PRODUCTS, INC., and FIRST QUALITY RETAIL SERVICES, LLC DEFENDANTS |
| Court | U.S. District Court — Western District of Kentucky |
This matter is before the Court on a bill of costs and a revised bill of cost submitted by Defendants First Quality Baby Products, LLC, First Quality Hygienic, Inc., First Quality Products, Inc., and First Quality Retail Services, LLC requesting the Court to tax costs in the amount of $140,625.96 against the Plaintiffs, SCA Hygiene Products Aktiebolag and SCA Personal Care, Inc.,[DN 123, DN 131] pursuant to Federal Rule of Civil Procedure 54(d) and 28 U.S.C. § 1920. Plaintiffs have filed objections to Defendants' bill of costs [DN 126, DN 132]. Fully briefed, these matters are ripe for decision.
Federal Rule of Civil Procedure 54(d) "creates a presumption in favor of awarding costs, but allows denial of costs at the discretion of the trial court." White & White, Inc. v. American Hosp. Supply Corp., 786 F.2d 728, 730 (6th Cir. 1986). See Ford v. FedEx Supply Chain Servs., Inc., 2009 WL 1585849, *1 (W.D. Tenn. June 3, 2009) (). Therefore, "[t]he party objecting to the taxation bears the burden of persuading the Court that taxation is improper." Roll v. BowlingGreen Metal Forming, LLC., 2010 WL 3069106, *2 (W.D. Ky. Aug. 4, 2010) (citing BDT Prods., Inc. v. Lexmark Intern., Inc., 405 F.3d 415, 420 (6th Cir. 2005), overruled on other grounds by Taniguchi v. Kan Pacific Saipan, Ltd., 132 S.Ct. 1997, 2007 (2012)). In Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437 (1987), the Supreme Court held that a district court may award costs only for those elements contained in 28 U.S.C. § 1920, which provides:
A judge or clerk of any court of the United States may tax as costs the following:
Defendants seek to recover $42,842.85 as costs for fees for printed or electronically recorded transcripts obtained for use in this case. Deposition expenses are generally taxed as costs under §1920. Sales v. Marshall, 873 F.2d 115, 120 (6th Cir. 1989). However, "not all of the costs associated with these depositions are taxable." Charboneau v. Severn Trent Laboratories, Inc., 2006 WL 897131, *3 (W.D. Mich. Apr. 6, 2006). Plaintiffs object to the requested costs on the grounds that the costs are excessive or that Defendants have failed to demonstrate that the costs werereasonably necessary. Plaintiffs claim that the Court's award of costs to Defendants for transcripts should not exceed $9,149.41.
Plaintiffs object to the cost of deposition transcripts of defense witnesses noticed by Plaintiffs. Deponents Bache, Silwanowiez, Damaghi, Oppenheim, Couch, Busch, Capone, and Minetola are all First Quality employees and party witnesses whose depositions were noticed by Plaintiffs. Likewise, Mr. Gardner and Mr. Addanki are both defense experts whose depositions were noticed by Plaintiffs. Plaintiffs argue that the costs for transcripts of these individuals were not necessary for the preparation of Defendants' case, and, as a result, Plaintiffs object to the $19,455.79 cost for the transcripts.
The Court finds that the fees requested by Defendants for the costs of the transcript copies of defense witnesses are properly taxable. As stated above, deposition expenses are taxable if they are necessarily obtained for use in the case. 28 U.S.C. § 1920. In the present case, the Plaintiffs noticed the depositions in question. Once Plaintiffs took the depositions, it would be reasonably necessary for Defendants to obtain a copy of the transcript. See, e.g., McInnis v. Town of Weston, 458 F. Supp. 2d 7, 22 (D. Conn. 2006); Crane-McNab v. County of Merced, 2011 WL 794284, *2 (E.D. Cal. Mar. 1, 2011)("Since plaintiffs could have used the depositions to impeach those witnesses at trial, it was reasonably necessary for defendant to obtain a copy of the transcripts."). In fact, "modern discovery practices and trial preparation virtually require that a party obtain copies of the depositions of its own employees and witnesses that are taken by its opponents." Longo v. Chao, 2008 WL 2783509, *3 (W.D. Tex. 2008)(citation omitted). For these reasons, the Court finds that it was reasonably necessary for Defendants to obtain a copy of the depositions noticed byPlaintiffs.
Section 1920 allows for "[f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case." The Sixth Circuit "accords with other circuit and district courts in recognizing that video deposition costs are taxable under § 1920 and that both stenographic transcripts and videotaped depositions, together, may be taxed." Graham v. City of Hopkinsville, Ky., 2013 WL 4456685, *2 (W.D. Ky. Aug. 16, 2013); Hyland v. HomeServices of America, Inc., 2013 WL 1904513, *3 (W.D. Ky. May 7, 2013)(BDT Products, Inc. v. Lexmark International Inc., 405 F.3d 415, 420 (6th Cir.2005)(citing Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471, 1477 (10th Cir.1997)( that "videotape depositions are taxable under § 1920" and that "it was proper to tax both the cost of videotaping and transcribing the deposition")).
While conceding the appropriateness of obtaining videotape depositions of six of Plaintiffs' fact witnesses, Plaintiffs object to the costs for both videotaping and transcribing the depositions of the remaining witnesses noticed by Defendants, Valdecanas/DeMarinis, Sperry, Sherrod, and Gering. In response, Defendants argue that the videotape deposition costs of these witnesses were reasonably and necessarily incurred because these fact witnesses were all outside the subpoena power of the Court and failure to guarantee the presence of these witnesses at trial necessitated a video record of their testimony. Further, Defendants maintain that using a video of expert depositions at trial is commonplace, and therefore, the video of their expert's deposition should be recoverable.
The Court finds that Defendants have not satisfied their burden of demonstrating that both the cost to transcribe and videotape the remaining witnesses deposed by Defendants was reasonablynecessary for the preparation of Defendants' case. Defendants do not identify these witnesses as key witnesses for the Defendants' case. See, e.g., Hyland, 2013 WL 1904513, *3. Furthermore, if the witnesses were not subject to the subpoena power of the Court and Defendants needed to utilize part of their deposition testimony, Defendants could read those portions of the deposition into the record. For these reasons, the Court excludes the fees associated with the videotape deposition of these witnesses in the amount of $8,035.00.
Plaintiffs object to the costs of the transcripts and videotaped depositions for witnesses noticed by Defendants as being unreasonably overpriced. Plaintiffs contend that the considerably higher cost of copies of transcripts and videographer fees from Defendants' vendor, TSG Reporting, was unreasonable, unnecessary, and incurred merely for the convenience of counsel. Plaintiffs request the Court reduce the costs associated with transcripts and videos purchased from Defendants' vendor to the more reasonable rate charged by Plaintiffs' vendor.
First, Plaintiffs argue that copies of the depositions transcribed by TSG Reporting cost $4.75/page, but copies of the depositions transcribed by Magna Legal Services were considerably lower - only $2.95/per page. A review of the invoices of both reporting services reveals that Magna Legal Services charges $ 2.95 per page for "1 CERTIFIED COPY OF TRANSCRIPT," while TSG Reporting charges $4.75 per page for "Original & 1 Certified Transcript." Additionally, TSG Reporting credits Defendants $.25 per page for the certified transcript purchased by Defendants. Thus, an examination of the invoices reflects that TSG Reporting essentially charged Defendants $4.50 per page for both the Original and 1 Certified Copy of the Transcript. Plaintiffs have offered no argument that the per page charge for both the Original and Certified Copy is excessive.
Additionally, the Court finds that the Defendants are entitled to reimbursement for both the cost of the original transcripts and one certified copy of the deposition transcripts. The Court concludes that these "were reasonably necessary for use in the case and not merely for the convenience of counsel." Cunningham v. Target Corp., 2010 WL 1032772, *2 (W.D. Ky. March 17, 2010). "The practicalities of preparing and submitting a motion for summary judgment that cites to depositions often require that an attorney has ready access to the transcripts and the ability to mark annotations and cross-references on the pages." Id. See also Street v. U.S. Corrugated, Inc., 2011 WL 2971036, *2 (W.D. Ky. July 20, 2011). Thus, the costs associated with the depositions are properly taxable costs.
Second, Plaintiffs argue that the videographer cost...
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