St. Jude Medical S.C., Inc. v. Biosense Webster, Inc. et al

Filing 342

MEMORANDUM OPINION AND ORDER denying 328 Defendants' Motion for Review of Taxation of Costs (Written Opinion). Signed by Judge Ann D. Montgomery on 01/26/2015. (TLU) Modified on 1/26/2015 (kt).

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
St. Jude Medical, S.C., Inc.,
Plaintiff,
MEMORANDUM OPINION
AND ORDER
Civil No. 12-621 ADM/TNL

v.
Biosense Webster, Inc., Johnson & Johnson,
and Jose B. de Castro,

Defendants.
______________________________________________________________________________
Edward F. Fox, Esq., Mark R. Bradford, Esq., and Nicole A. Delaney, Esq., Bassford Remele,
PA, Minneapolis, MN, on behalf of Plaintiff.
Joseph W. Anthony, Esq., Mary L. Knoblauch, Esq., Courtland C. Merrill, Esq., and Steven C.
Kerbaugh, Esq., Anthony Ostlund Baer & Louwagie, PA, Minneapolis, MN, on behalf of
Defendants.
______________________________________________________________________________
I. INTRODUCTION
This matter is before the undersigned United States District Judge on Defendants
Biosense Webster, Inc., Johnson & Johnson, and Jose B. de Castro’s (collectively, “Defendants”)
Motion for Review of Clerk’s Taxation of Costs [Docket No. 328]. In the Cost Judgment
[Docket No. 326] entered by the Clerk of the Court, the Clerk allowed $23,396.90 of the
$28,906.95 in total costs claimed by Plaintiff St. Jude Medical, S.C., Inc. (“St. Jude”).
Defendants request the Court to reduce the Cost Judgment by $8,208.86, consisting of $3,514.25
in deposition transcript costs, $3,265 in video deposition costs, and $1,429.61 in copying
expenses. St. Jude opposes the motion, arguing that the Court lacks jurisdiction to alter the Cost
Judgment, and alternatively, that the motion fails on the merits. For the reasons stated below,
Defendants’ motion is denied.

II. DISCUSSION
A. Jurisdiction
St. Jude argues that this Court lacks jurisdiction to alter the cost award because
Defendants appealed the Cost Judgment to the Eighth Circuit on December 22, 2014. See Notice
of Appeal [Docket No. 327] (including December 8, 2014 Cost Judgment among the orders
appealed to the Eighth Circuit). However, Defendants’ Statement of Issues on Appeal does not
list the Clerk’s taxation of costs as an issue presented for review on appeal. See Kerbaugh Decl.
[Docket No. 341] Ex. A (Appellant’s Statement of Issues).
A notice of appeal divests a district court of jurisdiction only of those issues involved in
the appeal. Harmon v. United States ex rel. Farmers Home Admin., 101 F.3d 574, 587 (8th Cir.
1996). “A district court retains jurisdiction over collateral matters, such as attorneys’ fees and
costs while an appeal is pending.” Comcast of Ill. X v. Multi-Vision Elecs., Inc., 504 F. Supp.
2d 740, 746 (D. Neb. 2007); see also Walsh v. Kelly, 203 F.R.D. 597, 598 (D. Nev. 2001)
(holding district court retained jurisdiction over motion for costs because the motion was
“ancillary to the case, that is, it involves issues that are separate from the matters currently under
consideration by the Ninth Circuit”).
The Defendants’ Statement of Issues on Appeal does not identify the issue of the amount
of taxable costs as an issue on appeal. The only manner in which the Cost Judgment is
implicated is if the Eighth Circuit were to reverse the underlying judgments that serve as the
basis for the cost award. If this occurred, the Cost Judgment would be vacated. Thus, the issue
of the amount of taxable costs is a collateral matter over which this Court retains jurisdiction.

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B. Merits
1. Deposition Transcripts
Defendants argue that the Clerk improperly taxed $3,514.25 in costs for six deposition
transcripts because the deposition transcripts were not used at trial or summary judgment. A
district court has discretion to award costs for a deposition that was “necessarily obtained for use
in a case and was not purely investigative.” Zotos v. Lindbergh Sch. Dist., 121 F.3d 356, 363
(8th Cir. 1997) (alteration and internal quotation marks omitted). In determining whether
depositions were necessarily obtained for use in a case, “the underlying inquiry is whether the
depositions reasonably seemed necessary at the time they were taken.” Id. (quotation marks
omitted).
With respect to the six deposition transcripts at issue, five were for depositions noticed
by Defendants. Therefore, it was reasonable for Plaintiff St. Jude to believe the depositions were
necessary at the time they were taken. See Farnsworth v. Covidien, Inc., Civ. No. 08-1689, 2010
WL 2160900, *3 (E.D. Mo. May 28, 2010) (“[I]t was reasonable [for Defendant] to believe that
the deposition was necessary at the time it was taken because Plaintiff was the one who
requested the deposition.”); Shukh v. Seagate Tech., LLC, Civ. No. 10-404, 2014 WL 4348199,
*4 (D. Minn. Sept. 2, 2014) (“Generally, courts allow the prevailing party to recover the costs
for depositions noticed and taken by the losing party.”).
The sixth deposition transcript was for the deposition of Defendants’ expert Dina
Aguilar. Obtaining the transcript from her deposition was reasonably necessary because it was
used in support of St. Jude’s successful Daubert motion excluding her expert testimony. See
Youssef v. FBI, 762 F. Supp. 2d 76, 86 (D.D.C. 2011) (“[I]t is appropriate to tax costs for

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depositions that are used by a party to support a motion for summary judgment or other
substantive motions made to the court in connection with the case.”); see also Shukh, 2014 WL
4348199, at *5 (allowing costs for deposition transcripts used in defending against motion to
exclude expert).
Therefore, the costs for the six deposition transcripts identified in Defendants’ motion are
recoverable.
2. Video Expenses
Defendants contend St. Jude is not entitled to recover $3,265 in video expenses
associated with the depositions of Jack Ayer and Collin Dean because St. Jude used only the
stenographic transcripts of those depositions at trial. “[E]xpenses associated with video
depositions are recoverable.” Craftsmen Limousine, Inc. v. Ford Motor Co., 579 F.3d 894, 897
(8th Cir. 2009). Additionally, “when a party notices a deposition to be recorded by
nonstenographic means, or by both stenographic and nonstenographic means, and no objection is
raised at the time . . . it is appropriate under [28 U.S.C.] § 1920 to award the cost of conducting
the deposition in the manner noticed.” Morrison v. Reichhold Chems., Inc., 97 F.3d 460, 465
(11th Cir. 1996).
Here, Defendants do not deny that the deposition notices for Ayer and Dean stated the
depositions would be videotaped, and Defendants raised no objection prior to or during the
depositions. Additionally, St. Jude had intended to show video clips of the depositions at trial,
but when Defendants’ objections to the video clips were sustained, St. Jude elected to read from
the deposition transcripts instead. Therefore, the Court is satisfied that the video recordings of
the Ayer and Dean depositions, in addition to the stenographic transcripts, were reasonably

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necessary under the circumstances.
3. Copying Costs
Defendants also contend that $1,429.61 in copying costs to reproduce the parties’ trial
exhibits are not recoverable because the expenses include index tabs and three-ring binders as
well as multiple and unnecessary copies of Defendants’ trial exhibits.
Costs for photocopying trial exhibits are recoverable. Sphere Drake Ins. PLC v. Trisko,
66 F. Supp. 2d 1088, 1093 (D. Minn. 1999). Here, both parties produced more than 130 trial
exhibits. Thus, the three-ring binders and index tabs were necessary to ensure the exhibits could
be easily referenced at trial. Additionally, the copies of the trial exhibits were utilized by
counsel and witnesses during trial. Therefore, the copies were necessarily obtained for use in the
case, and the Clerk’s taxation of the copying costs was proper.
III. CONCLUSION
Based on the foregoing, and all the files, records and proceedings herein, IT IS
HEREBY ORDERED that Defendants’ Motion for Review of Clerk’s Taxation of Costs is
DENIED.
BY THE COURT:

s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: January 26, 2015.

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