Smith et al v. Toyota Motor Corporation et al

Filing 188

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendant's Bill of Costs 172 is GRANTED, in part, and DENIED, in part. IT IS FURTHER ORDERED that Defendant is given an additional seven days to submit sufficiently detailed invoices or oth er evidence reflecting the taxable printing and copying charges and expenses for the depositions of Mr. Klima and Mr. Meyer. At that point, this Court will make a ruling on Plaintiff's objections to those costs and provide the final total of costs to be awarded to Defendant. Signed by District Judge E. Richard Webber on July 20, 2018. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KRISTIN MARIE SMITH
Plaintiff,
vs.
TOYOTA MOTOR CORPORATION
Defendant.

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Case No. 2:16CV24 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Defendant Toyota Motor Corporation’s Bill of
Costs [172].
I.

BACKGROUND
The underlying case involves a products liability claim brought by Plaintiff Kristin Smith

against Defendant Toyota Motor Corporation related to a one-car accident involving a Toyota
4Runner that Plaintiff had purchased and Defendant had designed. On May 1, 2018, following
trial, a jury returned its verdict in favor of Defendant. Defendant filed its Bill of Costs on May
22, 2018 [172]. Plaintiff filed an Objection to the Bill of Costs [176], largely arguing Defendant
had filed no supporting documentation for any of the expenses claimed as taxable costs apart
from an affidavit by Defendant’s counsel. In response, Defendant filed a Reply Memorandum in
Support of Bill of Costs [179], which included thirty exhibits. Exhibits 1-24 and 26-29 are copies
of relevant invoices and Exhibit 25 is a printout of Defendant’s counsel’s database reflecting the
individual costs incurred, including in-firm printing and copying charges billed to Toyota for this
case. Exhibit 30 is an affidavit of Craig Dupen. Plaintiff subsequently filed a Motion to Strike

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Defendant’s Memorandum in Support of Defendant’s Bill of Costs or in the Alternative Motion
for Additional Time to File Additional Objections [180]. At a teleconference on June 18, 2018,
this Court granted Plaintiff seven days to file additional objections and Defendant five days to
respond thereafter. Accordingly, on June 26, 2018, Plaintiff filed her Additional Objections to
Defendant’s Bill of Costs [185] and on July 2, 2018, Defendant filed a Response to Plaintiff’s
Additional Objections to Defendant’s Bill of Costs [186].
II.

ANALYSIS
Rule 54(d) of the Federal Rules of Civil Procedure provides “costs—other than attorney’s

fees—should be allowed to the prevailing party.” See also In re Derailment Cases, 417 F.3d 840,
844 (8th Cir. 2005) (“A prevailing party is presumptively entitled to recover all of its costs.”).
Pursuant to 28 U.S.C. § 1920, the Court may tax costs for:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for
use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials
where the copies are necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and
salaries, fees, expenses, and costs of special interpretation services under section
1828 of this title.
The Court may not award costs other than those authorized by § 1920, because this
section “imposes rigid controls on cost-shifting in federal courts[.]” Brisco–Wade v. Carnahan,
297 F.3d 781, 782 (8th Cir. 2002) (internal citations omitted). However, upon objection by the
opposing party as to authorized costs, the Court may exercise its discretion to grant or deny
costs. Pershern v. Fiatallis N. Am., Inc., 834 F.2d 136, 140 (8th Cir. 1987). A district court’s
discretion in this regard is broadly construed. Little Rock Cardiology Clinic PA v. Baptist Health,

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591 F.3d 591, 601 (8th Cir. 2009). Plaintiff includes several objections to expenses included in
Defendant’s Bill of Costs, which this Court will address as follows.
A.

Deposition Expenses
1.

Postage and Delivery Expenses

Plaintiff objects to Defendant’s requested $487.00 for postage and delivery expenses for
the transcripts requested by Defendant for use in this case, citing Smith v. Tenant Healthsystem
SL, Inc., 436 F.3d 879, 889-90 (8th Cir. 2006) (holding delivery costs for depositions are
nonrecoverable). Defendant stipulates “Eighth Circuit precedent agrees with Plaintiff’s position”
but argues some of the requested expenses “are not true postage/delivery expenses, but rather
‘handling fees.’” This Court notes, however, that both “shipping and handling expenses are not
recoverable” as they are “delivery expenses.” See E.E.O.C. v. Con-Way Freight, 4:07CV1638,
2010 WL 577289, *2-3 (E.D. Mo. Feb. 11, 2010) (emphasis added). Therefore, Plaintiff’s
objection to this cost will be sustained, and Defendant’s bill of costs will be reduced accordingly.
2.

Administration and Binding Fees

Plaintiff seemingly objects to Defendant’s requested $135.00 in expenses related to
administrative fees and binding fees, but provides no argument or precedent supporting her
objection. Therefore, Plaintiff has not met her burden to overcome the presumption of
recoverability, and this Court will overrule Plaintiff’s objection to this cost.
3.

E-Transcripts, ASCII, and Condensed Transcripts

Plaintiff objects to Defendant’s requested additional fees for electronic or additional
condensed copies of transcripts as nonrecoverable, citing Lift Truck Lease & Serv., Inc. v. Nissan
Forklift Corp., N. Am., 4:12CV153, 2013 WL 6331578, at *3 (E.D. Mo. Dec. 5, 2013).

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Defendant concedes this precedent supports Plaintiff’s stated position. However, Defendant
states Plaintiff has included charges for obtaining rough transcripts for certain expert witnesses,
including William Van Arsdell ($153.60), Mark William Arndt ($307.50), and Sri Kumar
($109.50). Defendant argues these costs are recoverable as the expert deposition schedule was
“incredibly condensed” because of Plaintiff’s “repeated unwillingness to present her experts for
deposition while Plaintiff attempted to add additional expert witnesses far after the deadline to do
so.”
In determining whether it was necessary for the parties to obtain rough transcripts of the
deposition for use in this case, this Court considers whether they seemed reasonably necessary at
the time they were requested. See Jo Ann Howard & Assocs., P.C. v. Cassity, 146 F.Supp.3d
1071, 1080 (8th Cir. 2015). Here, due to Plaintiff’s cancellations of depositions and pending
motions to further amend the deadline to disclose expert witnesses, the schedule for expert
depositions was largely forced into the bounds of one month, taking place between December 5,
2017, the date this Court ruled on Plaintiff’s Motion to Amend/Correct Expert Witness
Disclosure [49], and January 5, 2018, the amended deadline to depose expert witnesses. The
deposition schedule for Plaintiff’s expert witnesses was as follows: Mr. Arndt on December 13,
2017; Dr. Kumar on December 19, 2017; and Dr. Arsdell on December 22, 2017. The
depositions for Defendant’s experts occurred in the first week of January 2018 up until the
January 5 deadline. Defense counsel requested rough copies of transcripts after each of these
depositions for counsel’s review and use prior to deposing the next expert, and this Court finds it
was reasonably necessary for Defendant to do so. Accordingly, it will overrule Plaintiff’s
objection with respect to this cost.

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4.

Expedited Deposition Charges

Plaintiff objects to Defendant’s request for the expedited deposition transcript fees for
Mr. Arndt. This Court has previously found it is unclear whether the costs of expedited
transcripts are “taxable under § 1920 following the Supreme Court’s decision in Taniguchi v.
Kan Pacific Saipan, Limited, 566 U.S. 560 (2012).” Golan v. Veritas Entm’t, LLC,
4:14CV00069, 2017 WL 5564538, *3 (E.D. Mo. Nov. 20, 2017) (citations omitted). It has found,
however, that when expedited transcripts are “merely a convenience for counsel” and are “not
reasonably necessary” to the furtherance of the case, the cost for the expedited transcripts is not
recoverable under § 1920. Id. Here, Defendant claims the “condensed expert deposition
schedule” forced Defendant to request both an expedited deposition transcript and rough
deposition transcript for the deposition of Mr. Arndt. However, this Court finds it was not
necessary for Defendant to ask for both of these versions in order to prepare for the depositions,
even on a tight schedule. Rather, Defendant found it acceptable to only ask for rough transcripts
for Dr. Arsdell and Dr. Kumar, and it could have done so too for Mr. Arndt. Accordingly, this
Court will sustain Plaintiff’s objection to Defendant’s request for the expedited deposition
transcript fees for Mr. Arndt.
5.

Archiving Expenses

Plaintiff objects to a $15.00 archiving fee requested by Defendant related to the
deposition of Nichole Venegoni. In response, Defendant voluntarily withdraws this requested
cost. Therefore, this amount will be deducted from Defendant’s claimed cost for deposition
expenses.

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6.
Plaintiff

Videoconferencing Expenses
objects

to

Defendant’s

requested

$421.25

in

expenses

related

to

videoconferencing. In response, Defendant voluntarily withdraws this requested cost. Therefore,
this amount will be deducted from Defendant’s claimed cost for deposition expenses.
7.

Video Depositions

Plaintiff objects to Defendant’s requested $540.00 in video deposition expenses. In
response, Defendant voluntarily withdraws this requested cost. Therefore, this amount will be
deducted from Defendant’s claimed cost for deposition expenses.
8.

Deposition Invoices with No Detail

Plaintiff objects to Defendant’s request for $3,224.93 in charges from the deposition
invoices of Mr. Klima and Mr. Meyer, stating they are not itemized and merely reflect an overall
total. Plaintiff argues there is no way this Court can determine if the entirety of this total is
taxable under § 1920. Defendant states Plaintiff has not met her burden to overcome the
presumption that the costs are recoverable, but states it will volunteer to reduce its claimed costs
by $40.00 for shipping costs, $20.00 per deposition. As stated above, fees associated with
delivery of transcripts are not recoverable under § 1920. See Con-Way Freight, 2010 WL
577289, at *2-3. This Court cannot accept Defendant’s offer to reduce its costs by $40 because
there is no way of determining whether this sufficiently covers the nontaxable fees associated
with delivery of these transcripts. This Court will, however, give Defendant seven days to submit
more detailed invoices or other evidence showing a breakdown of this total, so it can make a
ruling on Plaintiff’s objection to these costs.

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9.

Deposition Color Copies and Second Copies of Exhibits

Plaintiff objects to Defendant’s request for $2,617.95 in “color exhibits and second
copies of exhibits” as unrecoverable. However, this Court has held, “[C]osts for copies of
deposition exhibits are recoverable to the same extent as their corresponding depositions.”
Cowden v. BNSF Ry. Co., 991 F.Supp.2d 1084, 1088 (E.D. Mo. 2014) (finding “authenticated
deposition exhibits are necessary for use in summary judgment pleadings, which require support
with admissible evidence, see Fed.R.Civ.P. 56(c), and costs incurred for use in summary
judgment proceedings are considered ‘necessarily obtained’ within the meaning of 28 U.S.C.
§ 1920.”). Other than a case from the United States District Court, Eastern District of Arkansas,
Clark v. Baka, 4:07-CV-477, 2011 WL 2881710, *3 (E.D. Ark. 2011), Plaintiff has offered no
precedent to support her argument that such exhibits are otherwise unrecoverable, and this Court
will accordingly overrule Plaintiff’s objection to this cost.
B.

Daily Trial Transcript Expenses

Plaintiff objects to Defendant’s requested $3,195.20 in charges for daily trial transcripts.
Plaintiff cites Farmer v. Arabian American Oil Co., 379 U.S. 227, 234 (1964), whereby the
United States Supreme Court affirmed the trial court’s finding that the daily trial transcript costs
were not taxable because they were “not indispensable.” This finding, however, is not the
Supreme Court’s announcement of a new standard for evaluating whether items are taxable
under § 1920. Rather, the standard is whether the transcripts were “necessarily obtained” for use.
28 U.S.C. § 1920.
In Cassity, this Court considered a number of factors when ultimately awarding costs for
daily transcripts to the prevailing party. 146 F.Supp.2d at 1082 (citing United Int’l Holdings, Inc.

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v. The Wharf (Holdings) Ltd., 174 F.R.D. 479, 484 (D.Colo.1997) (permitting the recovery of
costs for trial transcripts given the length and complexity of the case); Commerce Oil Refining
Corp. v. Miner, 198 F.Supp. 895, 897 (D.R.I. 1961) (same); Perks v. Town of Huntington, 331
Fed.Appx. 769, 770 (2d Cir.2009) (affirming an award of daily trial transcripts because the court
and parties extensively relied on them); Majeske v. City of Chicago, 218 F.3d 816, 825 (7th
Cir.2000) (same); Baker v. John Morrell & Co., 263 F.Supp.2d 1161, 1207–08 (N.D.Iowa 2003)
(taxing costs for daily trial transcripts where they were used in post-trial motions). Several of
these factors are applicable here. In particular, throughout the course of the trial, the parties and
this Court relied heavily on the use of daily transcripts, at several instances going back through
trial transcripts to reread tentative rulings this Court had made concerning objections involving
complex evidentiary issues made by both parties. This Court finds it was thus necessary for both
parties to have requested daily trial transcripts, and it will overrule Plaintiff’s objection to this
cost.
C.

Printing/Copying Charges

Plaintiff objects to Defendant’s requested $6,210.25 in printing and copying charges,
stating Defendant did not provide enough evidence to prove the copies were “necessarily
obtained for use in this case” as required under § 1920(4). In its response, Defendant states it
provided sufficient information to support an award for copying costs, citing Betton v. St. Louis
Cty., 4:05CV01455, 2010 WL 1948265, *2 (E.D. Mo. May 14, 2010), which states, “While the
prevailing party is not expected to provide a detailed description of every piece of paper copied,
it is expected to provide the best breakdown of the copied material obtainable from its records.”

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The finding Defendant cites to in Betton is a quote from Montgomery County v.
Microvote Corp., CV. No. 97-6331, 2004 W.L. 1087196, *27 (E.D. Penn. 2004), and this Court
finds the case at hand is more analogous to Montgomery County than it is to Betton. In
Montgomery County, the Pennsylvania court also stated, “The party[] seeking costs for copying
must provide evidence of the material copied so that the court can determine whether those
copies were, in fact, necessary.” Id. (citation and quotations omitted). The prevailing party had
provided reports to prove its taxable copying costs which showed the dates of the copies and the
rate that was charged but did not provide any description of what documents were copied. The
court ultimately concluded this was insufficient because it could not evaluate the necessity of the
costs. Id. In Betton, however, the prevailing party did provide a description of the types of
documents that were photocopied in proving its table copying costs along with the rate charged
for the photocopies in response to an Order to Show Cause. 2010 WL 1948265, at 2 This Court
found that was sufficient to support an award for copying costs, “particularly given that
Defendant did not file an objection to Plaintiffs’ costs.” Id. Here, Defendant has provided the
dates and the rate of the copies charged, but has not provided any description for the copies.
Accordingly, this Court cannot find the copies are recoverable under § 1920 because there is no
indication on the invoices as to whether the copies were “necessarily obtained for use in the
case.” It will, however, grant Defendant seven days to submit sufficiently detailed invoices
proving the amount requested for the copies is recoverable under § 1920(4).
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Bill of Costs [172] is GRANTED, in
part, and DENIED, in part.

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IT IS FURTHER ORDERED that Defendant is given an additional seven days to
submit sufficiently detailed invoices or other evidence reflecting the taxable printing and copying
charges and expenses for the depositions of Mr. Klima and Mr. Meyer. At that point, this Court
will make a ruling on Plaintiff’s objections to those costs and provide the final total of costs to be
awarded to Defendant.
So ordered this 20th Day of July, 2018.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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