Yannacopoulos, et al v. Gen Dynamics, et al

Filing 532

Memorandum Opinion and Order signed by the Honorable Robert W. Gettleman on 5/15/2012: Mailed notice (gds)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA, ex rel.
DIMITRI YANNACOPOULOS,
Plaintiff-Relator,
v.
GENERAL DYNAMICS and LOCKHEED
MARTIN CORPORATION,
Defendants.

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No. 03 C 3012
Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER
This matter is before the court on plaintiff-relator Dimitri Yannacopoulos’ (“plaintiff”)
objections to defendants’ bills of costs. This court granted summary judgment to defendants on
July 16, 2009. On July 26, 2011, the court of appeals affirmed that judgment. U.S. ex rel.
Yannacopoulos v. General Dynamics, 652 F.3d 818 (7th Cir. 2011). Defendant General
Dynamics filed a bill of costs seeking $36,989.49. Defendant Lockheed Martin also filed a bill
of costs seeking $240,031.39. For the reasons stated herein, the bills are granted in part and
denied in part.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 54(d), a prevailing party may recover costs other
than attorney’s fees unless otherwise disallowed by a statute, other rule or court order. Costs
that are generally recoverable may include: fees of the clerk and marshal; fees for printed or
electronically recorded transcripts necessarily obtained for use in the case; fees and
disbursements for printing and witnesses; fees for exemplification and the costs of making copies
of any materials where the copies are necessarily obtained for use in the case; docket fees; and

compensation of court appointed experts and interpreters. 28 U.S.C. § 1920. In analyzing a bill
of costs, 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). An award of costs requires two
inquiries: “(1) whether the cost imposed on the losing party is recoverable and (2) if so, whether
the amount assessed for that item was reasonable.” Majeske v. City of Chicago, 218 F.3d 816,
824 (7th Cir. 2000).1
DISCUSSION
I. Court Reporter Fees
Defendant General Dynamics seeks court reporter fees amounting to $15,162.86. This
sum consists of $6,738.55 in transcript fees, $5,146.56 in exhibit copies, $655.49 for a court
reporter’s appearance, and $2,622.26 for video recording. The last item, video recording, further
breaks down to $690.93 for CD-ROM costs and $1,931.63 for the videographer’s attendance.
Defendant Lockheed Martin seeks its own court reporter fees amounting to $17,620.17. This
sum breaks down to $4,984.97 in transcript fees, $5,096.70 in exhibit copies, and $7,538.50 in
video recording. The video recording costs are $6,833.50 in CD-ROM costs and $705 for the
videographer’s attendance.
28 U.S.C. § 1920(2) awards costs for “fees for printed or electronically recorded
transcripts necessarily obtained for use in the case.” In his Consolidated Objections to
defendants’ Bill of Costs plaintiff does not object to the transcript fees sought by either

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The court rejects plaintiff’s argument that defendants should not be awarded costs
because of his inability to pay. Ability to pay is not ordinarily a determinative consideration in
imposing costs. See e.g., Fehribach v. Ernst & Young, LLP, 493 F.3d 905, 912 (7th Cir. 2007).
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defendant. Therefore, defendant General Dynamics is awarded $6,738.55 and defendant
Lockheed Martin $4,984.97 in transcript costs.
Plaintiff does object to defendants’ claim for costs for exhibit copies, arguing that these
costs are inappropriate because plaintiff always provided defense counsel with hard copies of the
exhibits at the depositions. In Cengr v. Fusibond Piping Sys., Inc., 135 F.3d 445, 456 (7th Cir.
1998), the court refused to grant costs for copying exhibits because the defendant was given
copies of the exhibits. Here, because defendants were provided copies of the exhibits during the
deposition, the requests for costs for exhibit copies of $5,146.56 and $5,096.70 are denied.
Defendant General Dynamics also seeks $655.49 for the court reporter’s attendance. The
7th Circuit, in Extra Equipamentos E Exportacao Ltda. v. Case Corp., 541 F.3d 719, 727 (7th
Cir. 2008), noted that “since the reporter cannot make the transcript without attending the
hearing, the separate attendance fee is properly regarded as a component of the fee for the
transcript.” Defendant General Dynamics’ request for $655.49 is granted.
Finally, plaintiff objects to the video recording fees sought by defendants. Plaintiff
argues that the costs to convert the depositions to a CD-ROM format should be excluded because
defendants do not explain the cost or justify its use. Defendants argue that conversion to CDROM format was necessary to preserve the deposition for use at a potential trial. Plaintiff briefly
challenges the $705 videographer fee sought by defendant Lockheed Martin, but does not
challenge the corresponding $1,931.63 fee sought by defendant General Dynamics. As 28
U.S.C. § 1920(2) states, costs may be awarded for “electronically recorded transcripts.” Here,
defendants are awarded the costs for the attendance of the videographer, $1,931.63 for defendant
General Dynamics and $705 for defendant Lockheed Martin, because these correspond to the

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defendants obtaining the deposition. Defendants are not awarded the costs for conversion to
CD-ROM, because these were conveniences for defendants’ attorneys that were not necessary to
the case. Accordingly, defendant General Dynamics is awarded $1,931.63 and defendant
Lockheed Martin $705.
In sum, defendant General Dynamics is awarded $9,325.67, and defendant Lockheed
Martin is awarded $5,689.97 in court reporter costs.
II. Exemplification Costs
Defendant General Dynamics submits exemplification costs of $8,046.10, which includes
$1,646.66 for document production, $6,007.70 for electronic copies, $173.74 for summary
judgment briefing copy costs, and $218.00 in copy costs paid to the clerk of court. Defendant
Lockheed Martin seeks exemplification costs of $214,905.06, which includes $43,974.70 for
document production, $64,109.68 for electronic copies, $97,447.17 for pre-production copying,
and $9,373.51 for a supplemental production of documents.
28 U.S.C. § 1920(4) allows for “fees for exemplification and the costs of making copies
of any materials where the copies are necessarily obtained for use in the case.” Plaintiff does not
challenge defendant General Dynamics’ claim for summary judgment briefing costs or copy
costs paid to the clerk of court. Therefore, defendant General Dynamics is granted $173.74 and
$218.00 for these respective costs.
Plaintiff does challenge the remaining costs requested by both defendants. Specifically,
plaintiff argues that the $1,646.66 sought by defendant General Dynamics should not be
awarded, arguing that costs for Bates-stamping are not recoverable. Defendant General
Dynamics counters that given the complex nature of the litigation, and the volume of documents

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exchanged, Bates-stamping was necessary. In Nilssen v. Osram Sylvania, Inc., No. 01 C 3585,
2007 WL 257711, at *6 (N.D. Ill. 2007), the court awarded costs for Bates-stamping, noting the
“extensive number of documents” used in the case. Similarly, here, an extensive number of
documents were exchanged between the parties. Defendant General Dynamics is awarded
$1,646.66.
Plaintiff challenges the $43,974.80 claimed by defendant Lockheed Martin, arguing that
defendant did not provide a sufficient explanation of what was copied. Lockheed Martin states
that these costs are for documents necessary to the litigation that were copied and produced in
response to plaintiff’s document requests, which covered approximately 25 years of Greek
aircraft orders. Taking into consideration that these costs were incurred by defendant Lockheed
Martin because of plaintiff’s discovery requests, the $43,974.70 is awarded to defendant
Lockheed Martin.
Next, plaintiff challenges the electronic copy costs of $6,007.70 claimed by defendant
General Dynamics and $64,109.68 claimed by defendant Lockheed Martin. Plaintiff argues that
defendants obtained these electronic copies for their own convenience. Defendants argue that
these electronic copies were requested by plaintiff and that electronic discovery costs are
appropriate under Fed. R. Civ. P. 54(d). As noted, recently, “it is undisputed that electronic
discovery costs are available under Section 1920(4).” LG Electronics U.S.A., Inc. v. Whirlpool
Corp., No. 08 C 0242, 2011 WL 5008425 (N.D. Ill. Oct. 20, 2011). The costs incurred here by
defendants are reasonable, and were used necessarily in the course of litigation, as they were
incurred in responding to plaintiff’s production request. Accordingly, $6,007.70 is awarded to
defendant General Dynamics and $64,109.68 is awarded to defendant Lockheed Martin.

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Defendant Lockheed Martin requests $97,447.17 in pre-production copying charges
related to documents made available to plaintiff’s counsel for viewing. Plaintiff submits a
declaration from one of his attorney’s that he never requested that the documents be copied.
Further, it would have been more convenient for the attorney inspecting the documents to review
an original rather than a copy. Defendant Lockheed Martin has not shown that it was necessary
for it to make the copies of the documents. Instead, it seems to have been an unnecessary
expense. The request for $97,447.17 is denied.
The last remaining element of exemplification costs claimed by defendant Lockheed
Martin is $9,373.41 for smaller supplemental productions copied, bates labeled, and produced to
plaintiff in hard copy form. These costs are detailed on two invoices from August 5, 2005, and
one invoice from August 9, 2005. In plaintiff’s analysis of defendant Lockheed Martin’s copy
costs, he concedes that $5,612.95 is recoverable and challenges the remaining $3,780.46, arguing
that neither the costs for Bates-labeling totaling $338.75, nor the $3,421.71 in costs for CD’s
that were never produced to him should be allowed. As previously noted, the costs for Batesstamping are awarded; however, because plaintiff never received the CD’s that were created
during the supplemental production, he should not have to now bear that cost for a benefit he did
not receive. Accordingly, defendant Lockheed Martin is awarded $5,951.70 of these costs.
III. Computer Research
Defendant General Dynamics seeks computer research fees of $13,780.53, while
Defendant Lockheed Martin seeks computer research costs of $7,506.16. 28 U.S.C. § 1920 does
not specifically mention computerized research costs. In support of their claim, defendants cite
Little v. Mitsubishi Motors N. Am., Inc., 514 F.3d 699, 701 (7th Cir. 2008), a per curiam

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decision that found computerized research costs to be recoverable under 28 U.S.C. 1920, but
provided no explanation for this determination. In contrast, the 7th Circuit in Haroco, Inc. v.
American Nat’l Bank & Trust Co. of Chi., 38 F.3d 1429, 1440-1441 (7th Cir. 1994), considered
computer research costs to be attorney’s costs, which cannot be collected under Fed. R. Civ. P.
54(d). While these precedents stand in contrast, courts have viewed the analysis by the Haroco
court as providing greater support for declining to award this element of fees. See Rogers v.
Baxter Int’l Inc., No. 04 C 6476, 2011 WL 941188, at *5 (N.D. Ill. Mar. 16, 2011).
Accordingly, Defendants are not awarded computer research costs.
CONCLUSION
For the reasons stated, defendant General Dynamics is awarded costs in the amount of
$17,371.47. Defendant Lockheed Martin is awarded costs of $130,726.15.

ENTER:

May 15, 2012

__________________________________________
Robert W. Gettleman
United States District Judge

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