POLLACK et al v. REGIONAL SCHOOL UNIT NO 75 et al

Filing 368

ORDER granting in part and denying in part 364 Bill of Costs (Costs Taxed in amount of $ 4192.89 against Plaintiffs) By CLERK OF COURT, Christa K. Berry. (ems)

UNITED STATES DISTRICT COURT
District of Maine
MATTHEW POLLACK, et al.

)
)
Plaintiffs,
)
)
v.
)
)
)
REGIONAL SCHOOL UNION No. 75 )
)
Defendant
)

No. 2:13-cv-00109-NT

ORDER ON BILL OF COSTS

Federal 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
Page 1 of 8 

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.
Transcript Costs – Shipping and Handling
Defendant’s 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. 3661, 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.
Additionally, 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).

Page 2 of 8 

Transcript Costs – Video Depositions
Transcript 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).
In this 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.

Page 3 of 8 

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).
Transcript Costs – Expedited
As part 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

Page 4 of 8 

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.
Transcript Costs – Trial Transcripts
Defendant 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

Page 5 of 8 

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).
In this 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

Page 6 of 8 

cross-examining party exercised the privilege to question the plaintiff on deposition
and had the deposition available at trial).
Transcript Costs – Party & Employees
Plaintiffs 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 and where the Court can, in its discretion, tax
the costs of depositions not used at trial or put into evidence if “the taking of the
depositions is shown to have been reasonably necessary in light of the particular
situation.” Templeman, 770 F.2d at 249.
The total amount to be taxed in this case is as follows:
Orginal amount Claimed by Defendant:

$7,174.29

Less Shipping/Handling Costs of Depos:

(

Page 7 of 8 

95.00)

Less Costs of Word Indices:

(

90.00)

Less Video Deposition Costs:

(1,995.00)

Less Expedited Transcript Cost:

( 456.75)

Less Plaintiff Trial Testimony Costs:

( 344.65)

Total to be Taxed:

$4,192.89
ORDER

The Clerk of Court hereby taxes costs in favor of Defendant in the amount of
four thousand one hundred ninety-two dollars and eighty-nine cents ($4,192.89).
IT IS SO ORDERED.
/s/ Christa K. Berry
Clerk, U.S. District Court
Dated this 15th day of June, 2018

Page 8 of 8