Jo Ann Howard and Associates, P.C. et al v. Cassity et al

Filing 2509

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Plaintiffs' First Amended Bill of Costs [ECF No. 2398] is GRANTED, in part, and DENIED, in part. IT IS FURTHER ORDERED that Defendant PNC Bank must pay $499,723.20 to Plaintiffs pursuant to Rule 54(d) of the Federal Rules of Civil Procedure. Signed by District Judge E. Richard Webber on November 20, 2015. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JO ANN HOWARD &
ASSOCIATES, P.C., et al.,
Plaintiffs,
vs.
J. DOUGLAS CASSITY, et al.,
Defendants.

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Case No. 4:09CV01252 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiffs’ First Amended Bill of Costs [ECF No.
2398].
I.

BACKGROUND
This litigation arose out of proceedings instituted by the Texas Department of Insurance

in Travis County, Texas, in which National Prearranged Services, Inc. (“NPS”), Lincoln
Memorial Life Insurance Company (“Lincoln”), and Memorial Service Life Insurance Company
(“Memorial”) were placed in receivership and subsequently liquidated. Plaintiffs in this
litigation are Jo Ann Howard and Associates, P.C., acting on behalf of NPS, Lincoln, and
Memorial, as Special Deputy Receiver (“SDR”) in connection with the Texas receivership
proceedings; the National Organization of Life and Health Guaranty Associations
(“NOLHGA”) 1; and the individual state life and health insurance guaranty associations of
Arkansas, Illinois, Kansas, Kentucky, Missouri, Oklahoma, and Texas.
1

NOLHGA represents the interests of the state life and health insurance guaranty associations of Arizona,
California, Colorado, the District of Columbia, Georgia, Idaho, Indiana, Iowa, Louisiana, Maryland, Michigan,
Minnesota, Mississippi, Montana, Nebraska, Nevada, New Mexico, North Dakota, Ohio, Oregon, Rhode Island,
South Dakota, Tennessee, Utah, Washington, West Virginia, Wisconsin, and Wyoming.

1

On May 3, 2012, Plaintiffs herein filed their Third Amended Complaint, asserting a wide
variety of claims against various defendants, including, but not limited to, claims for violations
of the Racketeer Influenced and Corrupt Organizations (“RICO”) Act, 18 U.S.C. §§ 1961-1968,
violations of the Lanham Act, 15 U.S.C. §§ 1051-1141n, state law claims concerning intentional
and negligent fraudulent misrepresentations, negligence and gross negligence, breach of
fiduciary duties, and violations of the Texas Receivership Act, Tex. Ins. Code §§ 443.202443.205 [ECF No. 916]. The Third Amended Complaint alleged the fraudulent scheme’s
ultimate goal was to siphon funds away from NPS, Lincoln, and Memorial for the personal use
of certain defendants, a scheme that ultimately left more than $600 million in liabilities to be
satisfied by the SDR, NOHLGA, and the state life and health guaranty association Plaintiffs.
There were over forty defendants named in Plaintiffs’ Third Amended Complaint, with
varying degrees of alleged involvement in what Plaintiffs characterized as a scheme to defraud
individual consumers and funeral homes in the sale of NPS’s pre-need funeral contracts. All but
two of these defendants have since been dismissed.
On March 9, 2015, the jury returned a verdict for Plaintiffs and against Defendant PNC
Bank 2 [ECF No. 2301]. 3 Plaintiffs now seek recovery of their costs pursuant to Rule 54(d) of
the Federal Rules of Civil Procedure (“FRCP”).
II.

STANDARD
Rule 54(d) of the FRCP 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:
2
3

PNC Bank includes PNC Bank, N.A. and National City Bank.
Plaintiff makes no attempt to recover costs from any other defendants.

2

(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 North America, Inc., 834 F.2d 136, 140 (8th Cir. 1987).
Defendant has a number of objections to the Plaintiffs’ motion for costs, which the Court
will review in turn.
III.

DISCUSSION
A. § 1920(1) – Fees of the Clerk
The Court may tax the fees of the clerk to the prevailing party pursuant to 28 U.S.C. §

1920(1). Defendant does not dispute the taxation of this cost, and so Defendant will accordingly
be taxed $350.00 for fees of the Clerk.
B. § 1920(2) – Costs for Printed or Electronically Recorded Transcripts
i. Deposition Transcripts
As discussed infra, Defendant has failed to rebut the presumption that Plaintiffs are
entitled to recover all of their deposition transcript costs, and thus Defendant will be taxed
$69,555.13 in satisfaction of those costs.
3

1. Deposition Transcripts of Plaintiffs’ Experts and 30(b)(6)
Representatives 4
The cost of deposition transcripts for the Plaintiffs’ experts and 30(b)(6) representatives
will be taxed to Defendant. Defendant objects that the transcripts were not “necessarily obtained
for use in the case,” but were instead “obtained primarily for the convenience of [the] parties”
[ECF No. 2407, pg. 4]. Defendant contends this is “evidenced by the fact that Plaintiffs
did not request these depositions in the first instance and no parties appear to have referenced
this testimony in summary judgment briefing.” Defendant further argues Plaintiffs had
continuing access to these witnesses, and they could not have presented the witnesses’ deposition
testimony at trial [ECF No. 2407, pg. 5].
“The relevant inquiry is not whether the parties used the depositions at trial, but, rather,
whether the depositions reasonably seemed necessary at the time they were taken.” Cowden v.
BNSF Ry. Co., 991 F.Supp.2d 1084, 1089 (E.D. Mo. 2014) (quoting Zotos v. Lindbergh School
Dist., 121 F.3d 356, 363 (8th Cir. 1997)) (internal quotations omitted). Additionally, “[e]ven if a
deposition is not introduced at trial, a district court has discretion to award costs if the deposition
was necessarily obtained for use in case and was not purely investigative.” Id. (quoting Smith v.
Tenet Healthsystem SL, Inc., 436 F.3d 879, 889 (8th Cir. 2006)). This inquiry is prospective
rather than retrospective—it looks at what the parties would have reasonably considered
necessary at the time of the depositions, not what was ultimately necessary in response to
intervening circumstances. Zotos, 121 F.3d at 363 (“[T]he determination of necessity must be
made in light of the facts known at the time of the deposition, without regard to intervening

4

Defendant objects to paying the costs for the deposition transcripts for the following Plaintiff representatives and
experts: Shahriar Arfa-Zanganeh, Andy Dalton, Chris Fuller, Donna Garrett, Kim Harrigan, Jo Ann Howard, Paul
Peterson, and Anthony Pye [ECF No. 2407, pg. 4].

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developments that later render the deposition unneeded for further use.”) (internal quotations
omitted) (citations omitted).
Contrary to Defendant’s assertions, a party’s decision to utilize deposition testimony in
summary judgment briefing is merely evidence of necessity—opting not to do so does not
necessarily imply a lack of necessity within the meaning of § 1920(2). See Emmenegger v. Bull
Moose Tube Co., 33 F.Supp.2d 1127, 1134 (E.D. Mo. 1998) (“Although use of a deposition at
trial is direct evidence of its necessity, a deposition unused at trial may still fall within § 1920’s
ambit if it was reasonably necessary in preparing the case.”). Additionally, while the Plaintiffs’
continued access to these witnesses could in theory provide Plaintiffs with answers they sought
from such witnesses, access alone does not make the Plaintiffs’ possession of the deposition
transcripts unnecessary. Plaintiffs still needed an official record of what their experts and
personal representatives said during their depositions should they be called as witnesses.
Further, at the time the depositions were taken, Plaintiffs could have reasonably believed the
transcripts were necessary to utilize the information to anticipate and defend against arguments
put forth by the Defendants throughout the course of the litigation. See Cowden, 991 F.Supp.2d
at 1088 (“Plaintiff correctly predicted Defendant would use his deposition for impeachment
purposes. Thus, it was reasonably necessary for Plaintiff to possess a copy of the deposition.”).
Because Defendant has failed to rebut the presumption that the prevailing party is entitled
to receive all of their costs, the Defendant will be taxed the costs of deposition transcripts for the
Plaintiffs’ expert witnesses and 30(b)(6) representatives. See In re Derailment Cases, 417 F.3d
840, 844 (8th Cir. 2005).

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2. Deposition Transcripts for the Plaintiffs’ “Other witnesses relevant to
this case” 5
The costs of the deposition transcripts for the “other witnesses relevant to this case” to
which Defendant objects shall be taxed against Defendant. While the necessity of their
testimony may at this point seem of tenuous relevance, at the time the depositions were taken, all
of the individuals to whom Defendant objects were listed on Defendant’s witness list. Brookins
v. Wissota Promoters Assoc., No. A3-00-06, 2001 WL 629258, at *5 (D.N.D. Feb. 15, 2001)
(explaining that, where a witness is listed on a party’s witness list, obtaining their deposition
transcript can be considered relevant and necessary) (citing additional cases); see also Manildra
Mill. Corp. v. Ogilvie Mills, Inc., 76 F.3d 1178, 1184-85 (Fed. Cir. 1996) (affirming a finding of
the lower court that the deposition transcripts were necessary where witnesses were on a party’s
may call list); Maris Distrib. Co. v. Anheuser-Busch, Inc., 302 F.3d 1207, 1225 (11th Cir. 2002)
(finding that listing witnesses on a witness list indicates a need for a party to obtain deposition
transcripts for cross-examination purposes). If, at the time of their depositions, Plaintiffs were
aware of the possibility those witnesses may be called at trial, even if intervening circumstances
or otherwise rendered their testimony unnecessary, it cannot be said Plaintiffs’ procurement of
their deposition transcripts would have been at that time unnecessary within the meaning of
§1920(2). See Cowden, 991 F.Supp.2d at 1088 (quoting Zotos, 121 F.3d at 363). If there was a
possible need to cross-examine those witnesses or to prepare arguments to rebut assertions the
witnesses may have made during their depositions, then a copy of the deposition would be a
necessary tool in effectuating that purpose. See Brookins, 2001 WL 629258, at *5 (finding

5

Defendant objects to paying the costs for the deposition transcripts for the Plaintiffs’ “other witnesses relevant to
this case” as follows: Donna Botkin, Steven Bott, Dino Cannella, Scott Giuliano, Matthew Harlan, Herbert Lemmer,
David Pisarkiewicz, Shar Reinhold, and Bruce Talen [ECF No. 2407 at 5].

6

deposition transcripts necessary where they may be needed to guide witness testimony and to
object to improper cross-examination or impeachment).
Additionally, notwithstanding Defendant’s contentions, it is not the Plaintiff’s burden to
explain the necessity of obtaining deposition transcripts; it is incumbent upon the objecting party
to rebut the presumption the prevailing party is entitled to recover all of its costs. See Cowden,
991 F.Supp.2d at 1087 (quoting In re Derailment Cases, 417 F.3d 840, 844 (8th Cir. 2005)).
Defendant has failed to do so. The Defendant will be taxed the costs of the deposition transcripts
for Plaintiffs’ “other witnesses relevant to this case.”
ii. Hearing Transcripts
Because this Court is persuaded of the necessity of some of the Plaintiffs’ requested
hearing transcripts, the costs for such transcripts shall be awarded as discussed infra. Hearing
transcripts are recoverable as costs under § 1920(2) if they are necessarily obtained for use in the
case. See Moore v. Moore, 111 Fed. App’x. 436, 439 (8th Cir. 2004) (affirming an award for
costs of a preliminary hearing transcript). However, what qualifies as “necessarily obtained”
with respect to a hearing transcript has been left unclear in the Eighth Circuit. In order to
explicate a clearer line with which to distinguish the recoverability of a given hearing transcript,
this Court finds the deposition transcript inquiry to be appropriately analogous: whether the
hearing transcripts reasonably seemed necessary at the time they were obtained. See Zotos, 121
F.3d 356 (applying similar language to deposition transcript cost recovery).
Defendant argues none of the Plaintiffs’ ten requested hearing transcripts were necessary
because they were all of hearings resulting in written orders [ECF No. 2407, pg. 6]. This
argument is meritless; countless remarks, oral agreements, expositions of legal theories, and
more could be discussed at any given hearing which may not work their way into a final written
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order. The mere existence of a written order following a hearing does not nullify all conceivable
need for a transcript of the hearing.
Those issues aside, hearing transcripts numbers 1 through 5, as listed in Plaintiffs’ Reply
in Support of their First Amended Bill of Costs [ECF No. 2433, pgs. 6-9], shall not be allocated
to Defendant, as they cannot be said to have been “necessarily obtained” within the meaning of §
1920(2). 6 Plaintiffs assert generally these transcripts were “essential to maintaining a proper
record of the proceedings, drafting briefs, and preparing for trial” [ECF No. 2395, pg. 6]. With
respect to the June 21, 2011 transcript, Plaintiffs offer no compelling explanation, following
Defendant’s objections, as to how the transcript was reasonably necessary at the time it was
obtained; Plaintiffs simply assert they “consulted the transcript” and “used the Court’s remarks
in pleadings” [ECF No. 2433, pg. 7]. This particular use is more properly considered a
convenience rather than a necessity, and thus this cost shall not be awarded. See McDowell v.
Safeway Stores, Inc., 758 F.2d 1293, 1294 (8th Cir. 1985) (“[T]he court should determine that
transcripts were not obtained primarily for the convenience of parties but were necessary for use
in the case.”).
As for the January 3, 2014 hearing transcript, Plaintiffs appear to have obtained a
transcript in anticipation of yet unraised legal issues or trial complications [ECF No. 2433, pg.
7]. Such uncertainty in the need for a transcript does not rise to the requisite level of reasonable
necessity at the time the transcript was acquired, as there was no indication Defendant might
breach an agreement made in open court. Furthermore, the costs of the June 9, 10, and 17, 2014
6

Transcripts 1-5 are: (1) 6/21/11 Rule 16 Conference, (2) 1/3/14 Hearing Regarding Depositions of Criminal
Defendants, (3) 4/28/14 Hearing on Plaintiffs’ Motion to Strike National City Bank’s Failure to Mitigate Damages
Defense and Quash its Subpoena, (4) 6/9/14-6/10/14 Hearings Regarding Plaintiffs’ Motion to Compel 30(b)(6)
Testimony from National City Bank, and (5) 6/17/14 Telephone Hearing Regarding Plaintiffs’ Motion to Compel
30(b)(6) Testimony from National City Bank.

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transcripts will not be taxed to Defendant for the same reason: a transcript for the purpose of
holding Defendant to an agreement that there is no evidence they intended to breach renders the
transcript not reasonably necessary at the time it was obtained.
Because transcripts 1-5 were not reasonably necessary at the time they were obtained,
Plaintiffs’ requested costs for hearing transcripts for those dates shall not be taxed to Defendant.
However, hearing transcripts numbers 6-10, as listed in the Plaintiffs’ Reply in Support
of their First Amended Bill of Costs [ECF No. 2433, pgs. 9-12], shall be taxed to Defendant, as
Plaintiffs have demonstrated a degree of necessity for those transcripts which has not been
successfully rebutted by Defendant. 7 The November 12, 2014 hearing covered numerous,
complex motions—so many that maintaining orderly and accurate personal notes of the hearing
would have been cumbersome, if not impossible, while also attempting to retain some degree of
efficiency in the proceeding. Further, any written order would likely not have addressed every
significant detail raised throughout the course of the hearing. As such, the transcript was
reasonably necessary at the time it was obtained, and costs shall be taxed to Defendant.
The November 24 and 25, 2014 Daubert hearing transcripts were also reasonably
necessary at the time they were obtained. As Plaintiffs point out, this Court made both oral and
written statements at the hearing on the admissibility and scope of expert testimony, some of
which were inconsistent, and “Plaintiffs needed to compare the hearing transcript to the Order to
understand where, if at all, there were conflicting statements” [ECF No. 2433, pg. 9].
Additionally, because it was only a matter of weeks between this hearing and the December
7

Transcripts 6-10 are: (6) 11/12/14 Hearing Regarding Plaintiffs’ Motion for Leave to Amend the Complaint,
Plaintiffs’ Motion to Compel 30(b)(6) Testimony from National City Bank, National City Bank’s Motion to Compel
Plaintiffs’ Production of Settlement Documents, and Plaintiff SDR’s Motion for In Camera Review and to Compel
Production of Non-Privileged Documents; (7) 11/24/14-11/25/14 Daubert Hearing; (8) 12/17/14-12/19/14 Summary
Judgment Hearing; (9) 1/26/15-1/28/15, 1/30/15 Pretrial Conference; (10) 2/3/15-2/4/15 Rule 104 Summary Exhibit
Hearing.

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summary judgment hearing, the cost of expediting the transcripts is reasonable and taxable to the
Defendant.
The transcript of the summary judgment hearing on December 17 through 19, 2014 is
similarly taxable to Defendant as having been reasonably necessary at the time it was obtained.
This hearing was long, complex, and covered numerous topics and arguments. Furthermore, the
temporal proximity of the hearing to various deadlines, including the pre-trial conference and the
trial itself, illustrates the reasonable necessity of obtaining a transcript, and additionally warrants
the cost associated with an expedited production.
The pre-trial conference transcripts from January 26, 27, 28, and 30, 2015 were also
reasonably necessary at the time they were obtained. This four day proceeding contained
numerous rulings, objections, withdrawn objections, and more, in which it would have been
impracticable to have sufficiently utilized another less accurate method of recording the
developments, particularly so near in time to trial.
Finally, the February 3 and 4, 2015 Rule 104 Summary Exhibit Hearing transcripts are
similarly recoverable as being reasonably necessary at the time they were obtained. The
rationale supporting their recovery would be largely duplicative of that supporting recovery for
the previous transcripts, with the exception, as Plaintiffs note, that this Court, as well as the
parties, relied on the transcript for its accuracy. This fact serves to illustrate the practical
necessity of a transcript in a case of this magnitude and complexity.
For the aforementioned reasons, $11,251.10 will be taxed to the Defendant for the costs
associated with the Plaintiffs’ acquisition of reasonably necessary hearing transcripts.
iii. Daily Trial Transcripts

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The costs of the daily trial transcripts will be taxed to Defendant as having been
necessarily obtained for use in the case. McDowell, 758 F.2d at 1294. Plaintiffs argue the daily
trial transcripts were necessary as a result of the length and complexity of the trial, the parties
and the court extensively relied on the transcripts, and the trial transcripts were utilized heavily
in post-trial briefing [ECF No. 2433, pgs. 12-15]. In response, Defendant cites a string of
Missouri district court cases refusing to tax costs for daily trial transcripts [ECF No. 2407, pgs.
7-8]. However, Defendant does not object to McDowell’s general proposition that trial
transcripts are taxable where they are necessarily obtained [ECF No. 2407 at 8], they merely note
that trial transcripts “are not ordinarily ‘necessary.’” (emphasis added). All of the cases
Defendant cites are cases in which the trials lasted no longer than a week and a half, as can be
gleaned either from the express language of the opinions or from the diminutive costs associated
with the daily trial transcripts discussed therein. See, e.g., Emennegger, 33 F.Supp.2d at 1138
(nine day trial); Avante Int’l Tech. Corp. v. Premier Election Solutions, Inc., No. 4:06CV0978
TCM, 2009 WL 3259613 (E.D. Mo., 2009) (six day trial).
Conversely, the instant trial spanned over four weeks, covered numerous issues, the
testimony of dozens of witnesses, the introduction of an extensive array of evidence, and more.
Plaintiffs cite to a series of cases at both the district and circuit court levels awarding or
affirming costs of daily trial transcripts on theories regarding the length and complexity of the
case, on the heavy reliance of parties and courts, on their use in post-trial briefing, and more. See
United Int’l Holdings, Inc. 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
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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 posttrial motions). Each of these rationales for taxing the costs of daily trial transcripts were
observable in this case. As both parties concede, daily trial transcripts are taxable where they are
necessarily obtained for use in the case, and a long and complex case such as this serves as a
clear exemplification of the necessity anticipated by § 1920(2).
For these reasons, $29,584.15 will be taxed to Defendant for costs associated with the
Plaintiffs’ acquisition of daily trial transcripts.
C. § 1920(3) – Witness Fees and Disbursements
The full $35,421.34 cost associated with witness fees for attending depositions and trial
shall be taxed to Defendant without exception for Plaintiffs’ 30(b)(6) witnesses. The Supreme
Court has explained “§ 1821 specifies the amount of the fee that must be tendered to a witness, §
1920 provides that the fee may be taxed as a cost, and Rule 54(d) provides that the cost shall be
taxed against the losing party unless the court otherwise directs.” Crawford Fitting Co. v. J. T.
Gibbons, Inc., 482 U.S. 437, 441 (1987). As Defendant notes, the term “witness” in § 1821
required further definition, and correctly identifies the existence of the “party witness exception”
barring recovery of witness fees for parties to a lawsuit. See Haroco, Inc. v. Am. Nat’l Bank &
Trust Co., 38 F.3d 1429, 1442 (7th Cir. 1994) (identifying the “general rule” that parties may not
normally collect witness fees); Hodge v. Seiler, 558 F.2d 284, 287 (5th Cir. 1977) (same); EEOC
v. Convergys Customer Mgmt. Grp. Inc., No. 4:04-CV-846 CAS, 2006 WL 2345541, at *7 (E.D.
Mo. July 7, 2006) (same, citing Haroco), aff’d, 491 F.3d 790 (8th Cir. 2007). However,
Plaintiffs have identified a series of cases limiting the applicability of the party witness exception
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to only those party witnesses who are named parties or parties in interest [ECF No. 2433 at 16].
See, e.g., Canal Barge Co. v. Commonwealth Edison Co., No. 98 C 0509, 2003 WL 1908032, at
*5 (N.D. Il. Apr. 18, 2003) (taxing costs for witness fees of corporate representatives); Gelda v.
R.O.I. Enterprises, Inc., 581 F.Supp. 553, 555 (E.D. Mo. 1984) (taxing witness fees where the
officer/director testifying for a party corporation was not “personally involved in the litigation.”).
This Court is persuaded by Plaintiffs’ argument that New Jersy Mfrs. Ins. Grp. v.
Electrolux, Inc., No. CIV.A.10-1597 AET, 2013 WL 5817161, at *10 (D.N.J. Oct. 21, 2013), the
sole case cited by Defendant for the proposition that 30(b)(6) witnesses qualify as party
witnesses, is inapplicable as being in reference to a local rule of procedure and not § 1920(3).
Because this Court finds none of the witness’ fees to which Defendant objects were those
of “party witnesses,” the exception does not apply and the full cost of $35,421.34 for the
Plaintiffs’ witness fees shall be taxed to Defendant.
D. § 1920(4) – Exemplification and Copying Costs
i. Electronic Discovery Costs
The bulk of the costs associated with the production of documents pursuant to the
stipulated electronic discovery agreement shall be taxed to Defendant as “copies” necessarily
obtained for use in the case. However, some costs incurred paying Plaintiffs’ “support
specialist” for services rendered in production of the documents shall be reduced due to the
prevalence of unrecoverable costs and to the inability of this Court to parse apart some of the
taxable and untaxable portions of the costs given the imprecision of the work documentation.
See Chavis Van & Storage of Myrtle Beach, Inc. v. United Van Lines, LLC, No.
4:11CV1299RWS, 2014 WL 1729152 (E.D. Mo. May 1, 2014) (refusing to tax costs where the
moving party failed to adequately separate taxable from untaxable costs in their invoices).
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As a preliminary matter, this Court is persuaded by the Plaintiffs’ argument that
discovery-related copying expenses, and not exclusively trial-related copying expenses, fall
within the purview of § 1920(4). Following legislative history, Eighth Circuit precedent, and
precedent from other circuits, this Court holds that all expenses related to copying and
exemplification, whether for production in discovery or for use at trial, are taxable as costs under
§ 1920(4) if necessarily obtained for use in the case. See Race Tires America, Inc. v. Hoosier
Racing Tire Corp., 674 F.3d 158, 165 (3d Cir. 2012) (noting the legislature changed the language
of § 1920(4) from “for use at trial” to “for use in the case”); Country Vintner of North Carolina,
LLC, v. E. & J. Gallo Winery, Inc., 718 F.3d 249, 257 (4th Cir. 2013) (same); In re Online DVDRental Antitrust Litigation, 779 F.3d 914, 927 (9th Cir. 2015) (noting the Ninth Circuit does not
require a document to be introduced into the record to be recoverable as a copy); Little Rock
Cardiology Clinic v. Baptist Health, 591 F.3d 591, 602 (8th Cir. 2009) (citing Slagenweit, 63
F.3d 719) (noting the Eighth Circuit has upheld awards of costs for discovery-related expenses);
Stanley v. Cottrell, Inc., 784 F.3d 454, 467 (8th Cir. 2015) (citing Little Rock with approval for
the proposition that a court can properly tax discovery-related copying costs); CBT Flint
Partners v. Return Path, Inc., 737 F.3d 1320, 1328 (Fed. Cir. 2013) (allowing recovery of
discovery-related copying costs).
This Court acknowledges the law regarding what qualifies as “making copies” within the
meaning of § 1920(4) is inconsistent throughout the nation. However, in defining the term, and
in the absence of prevailing Eighth Circuit precedent on this issue, this Court is persuaded by the
reasoning of the Federal Circuit and the Ninth Circuit in their interpretations of § 1920(4). See
CBT Flint Partners, 737 F.3d 1320 (permitting the taxation of discovery-related costs for the
production of meta-data, imaging drives, file conversion, scanning, and load file production
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where all of the above are necessary to comply with a court order or production agreement
between the parties, but excluding the costs of de-duplication, coding, document review, costs of
setting up the data hosting server, keyword searching, and decryption); In re Online DVD, 779
F.3d at 928 (permitting taxation of costs for OCR, conversion to TIFF, and citing the reasoning
of the Federal, Fourth, and Third Circuits in CBT Flint, Country Vintner, and Race Tires for their
relatively inclusive definitions of “making copies”). In order to produce a “faithful production of
electronically stored information,” the term “making copies” should be construed to include the
movant’s costs of OCR scanning, TIFF conversions, the imaging of computer storage drives, the
transfer of files from one drive or disc to another, the production of load files, and the extraction
or imaging of metadata where required to provide a complete copy of a file if such metadata is
requested by the opposing party, but shall exclude Bates labeling as a taxable cost. See CBT
Flint Partners, 737 F.3d 1320 (Fed. Cir. 2013); In re DVD, 779 F.3d at 928. While this Court
does recognize the practical necessity of Bates labeling in light of the sheer volume of
documents produced in this case, Bates labeling can in no way be construed as “making copies”
within the plain language of § 1920(4). See Taniguchi v. Kan Pacific Saipan, Ltd., 132 S.Ct.
1997, 2000 (2012) (holding courts have to construe § 1920 statute narrowly, but give the words
their plain meaning). There are two primary reasons for this conclusion.
First, because the term “copies” is construed to include copies of digital documents, any
process or procedures inherent in producing a completed “copy” of the final digital document
must be recoverable, as the ultimate digital copy could not be completely and accurately
produced but for the completion of those ancillary procedures. See CBT Flint, 737 F.3d at 1328.
This includes things like the costs of OCR scanning, TIFF conversions, producing load files, the
imaging of computer storage drives, the transfer of files from one drive or disc to another, and
15

the extraction or imaging of metadata. These are all examples of procedures undertaken by
Plaintiffs which are implicit in the creation of a copy of a digital document, necessarily
performed in order to accurately reproduce the document in accordance with a production
request by Defendant and the court.
However, the costs associated with Bates labeling are not properly allocated to Defendant
in this case, even in light of the tremendous volume of documents rendering such organizational
procedures of practical necessity. 8 Adhering to the plain meaning of the language utilized in §
1920(4), this Court cannot construe the term “copies” to include activities entirely unrelated to
providing a full and complete copy of a document or other material. Bates labeling is an
organizational procedure, not a method of replication.
In spite of the exclusion for Bates labeling, a relatively broader definition of “copies”
including intermediary steps is generally more appropriate. Where a task or procedure is an
indispensable component of producing a fair and accurate copy of a document or other
“material,” those costs are recoverable. This applies equally to the act of running a piece of
paper through a copy machine as it does to the extraction or imaging of metadata. See CBT
Flint, 737 F.3d at 1329. It does not follow that because the words “extraction” and “imaging” do
not sound or look much like the word “copy,” or that because the process of imaging a storage
drive does not appear to share many characteristics with the process of running a piece of paper
through a copy machine, they are somehow intrinsically different in the essential nature of the
actions being performed and the results being produced.
Second, the costs of making copies were incurred pursuant to a standing order requiring
Plaintiffs to produce to Defendant copies of all documents produced by Plaintiffs throughout the
8

Over 900,000 documents were produced by Plaintiff consisting of over 5 million pages [ECF No. 2433, pg. 20].

16

course of the litigation, and also to a stipulated agreement between the parties to produce all ESI
in a particularly specified manner, including all metadata [ECF No. 733]. In order to have been
in compliance with both the agreement and the order, it was necessary, within the meaning of §
1920(4), for Plaintiffs to produce copies of all documents to Defendant with their metadata
intact. Although the stipulations as to the form of document production were self-imposed, the
ordered document production at issue was not. As a result, there can be no argument the copies
were not “necessarily obtained.” Race Tires Am., Inc., 674 F.3d at 171, n. 11 (“[W]e have
acknowledged that the costs of conversion to an agreed-upon production format are taxable as
the functional equivalent of ‘making copies.’”); Country Vintner, 718 at 260, n. 19 (“If . . . a case
directly or indirectly required production of ESI-unique information such as metadata, we
assume, without deciding, that taxable costs would include any technical processes necessary to
copy ESI in a format that includes such information.”); In re DVD, 779 F.3d at 928 (“When
copies are made in a fashion necessary to comply with obligations such as these, costs are
taxable so long as the copies are ‘necessarily obtained for use in the case.’”); CBT Flint, 737
F.3d at 1328 (“To the extent that a party is obligated to produce (or obligated to accept)
electronic documents in a particular format or with particular characteristics intact (such as
metadata, color, motion, or manipulability), the costs to make duplicates in such a format or with
such characteristics preserved are recoverable.”).
Notwithstanding this Court’s authority to tax costs for a variety of digital copying-related
expenses, Plaintiff has included a small proportion of unrecoverable costs in the documentation
of the work performed by their in-house technology specialist, and the Court has reduced their
cost recovery accordingly.

17

Additionally, acknowledging Defendant’s contention they should not be responsible for
the costs incurred litigating claims against other settling defendants, the full extent of the taxable
costs will be levied against PNC Bank. As Plaintiffs note, Eighth Circuit precedent explains the
prevailing party is not only presumptively entitled to recover all of their costs, but the parties
from whom costs are sought are jointly and severally liable for such costs [ECF No. 2433 at 22].
See Concord Boat Corp. v. Brunswick Corp., 309 F.3d 494, 497-8 (8th Cir. 2002). To hold
otherwise would circumvent the presumption embodied in Rule 54(d). Id. at 497.
In light of the foregoing, $309,977.87 shall be taxed to Defendant for the Plaintiffs’
copying costs incurred in the production of Electronically Stored Information.
ii. Copies of Depositions and Trial Exhibits
Defendant does not object to this category of costs, and therefore $48,275.83 shall be
taxed to Defendant.
iii. Exemplification Costs for Printing Demonstrative Exhibits, Displaying Trial
Exhibits to the Jury, and Video Editing
Because the Eighth Circuit has not clearly decided this issue, see Crues v. KFC Corp.,
768 F.2d 230, 234 (8th Cir. 1985), this Court is tasked with determining the proper interpretation
of the term “exemplification” within the meaning of § 1920(4). The degree to which certain
exhibits or expenses are recoverable as costs varies widely among the circuits. But see Marmo v.
Tyson Fresh Meats, Inc., 457 F.3d 748, 763-64 (8th Cir. 2006) (affirming, without discussing, an
award of exemplification costs that contained “graphic and visual aids”); compare Kohus v. Toys
R Us, Inc., 282 F.3d 1355, 1359 (Fed. Cir. 2002) (holding that the term “exemplification” should
be construed narrowly in accordance with the Black’s Law Dictionary definition, which defines
it simply as “[a]n official transcript of a document from public records, made in form to be used
18

as evidence, and authenticated as a true copy”); Arcadian Fertilizer, L.P. v. MPW Indus.
Services, Inc., 249 F.3d 1293, 1297 (11th Cir. 2001) (same); Coats v. Penrod Drilling Corp., 5
F.3d 877, 891-92 (5th 1993) (same); Summit Technology, Inc. v. Nidek Co., Ltd., 435 F.3d 1371,
1376-78 (Fed. Cir. 2006) (same); with Cefalu v. Village of Elk Grove, 211 F.3d 416, 427-429
(7th Cir. 2000) (holding that “exemplification” should be construed in accordance with its plain
meaning—“to show or illustrate by example,” therefore including the costs of any action or
creation that “furthers the illustrative purpose” of an exhibit); Trammel v. BASF Corp., No.
99C6897, 2002 WL 59114, at *7 (N.D. Il. Jan. 14, 2002) (same); Chemetall GmbH v. ZR
Energy, Inc., No. 99C4334, 2001 WL 1104604, at *30 (N.D. Il. Sept. 18, 2001) (same); Goss
Intn’l Corp. v. Tokyo Kikai Seisakusho, Ltd., No. C00-35LRR, 2004 WL 1234130, at *11 (N.D.
Iowa June 2, 2004).
In light of the Supreme Court’s ruling in Taniguchi, the language of § 1920 should be
given its plain meaning, and in view of Marmo’s tacit approval of a broader “exemplification”
definition, this Court is unpersuaded by the reasoning of other circuits the interpretation of the
term “exemplification” should be confined to the its narrowest legal definition. See Taniguchi,
132 S.Ct. at 2002 (“When a term goes undefined in a statute, we give the term its ordinary
meaning.”); Marmo, 457 F.3d at 763-64. However, limiting a party’s otherwise overbroad cost
recovery is the requirement that an exemplification be “necessarily obtained for use in the case.”
28 U.S.C. § 1920(4); Cefalu, 211 F.3d at 428; Country Vintner, 718 F.3d at 250. As a result,
Plaintiffs’ costs for exemplification shall not be taxed against Defendant for reasons articulated
infra.
1.

Costs of Demonstrative Exhibits

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Demonstrative exhibits fall within the ambit of “exemplification” under the Court’s plain
language interpretation of the term. By their very name, demonstrative exhibits demonstrate—or
illustrate—a concept or fact to the fact finder by way of example. See Manildra, 878 F.Supp. at
1428, n.10 (“‘Exemplification’ has been interpreted to embrace all manner of demonstrative
evidence, such as models, charts, photographs, illustrations, and other graphic aids.”) (internal
quotations omitted) (quoting reference omitted). Some circuits have explained that, in order to
qualify as an “exemplification,” the presentation in question must “further[] the illustrative
purpose of [the] exhibit.” Cefalu, 211 F.3d at 428. However, even if the demonstrative exhibits
qualify as an exemplification, they must still have been “necessarily obtained.” Id. (quoting §
1920(4)). Courts have interpreted the necessity requirement to exclude cost recovery for exhibits
which were merely illustrative of expert testimony, other adequate evidence, or that served
primarily to illustrate counsel’s argument. See Manildra, 878 F.Supp. at 1428; Esler v. Safeway
Stores, Inc., 77 F.R.D. 479, 483 (W.D. Mo. 1978); Guevara v. Onyewu, 943 F. Supp. 2d 192
(D.D.C. 2013); Summit Tech, 435 F.3d at 1375, 1377.
Defendants contend this Court should do the same, while Plaintiffs cite to the Goss
decision which misquotes and misrepresents the Eighth Circuit’s decision in Crues. 9
Additionally, the court in Goss allowed the recovery of costs for exhibits simply because of the
“complexity of the issues,” and because “[t]he demonstrative exhibits and graphic presentations
[the plaintiff] used at trial expedited [its] presentation of issues and made trial of th[e] matter
more efficient than it would have been without such demonstrative exhibits and graphic
presentations.” Goss, at 11. But, to employ this relaxed standard for “necessity” is to read the

9

The court in Goss cited Crues for the proposition that “[e]xpenses for trial exhibits, including enlargements, may
be costs which are allowable under § 1920(4). . .” However, Crues refrained from deciding whether or not such
costs are covered by § 1920(4) and remanded the case for a determination of necessity. 768 F.2d at 234.

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requirement out of the statute entirely—every demonstrative expedites presentation of the issues
and makes trial more efficient. Moreover, the incentives of an attorney are to develop trial
techniques beyond what is strictly “necessary” for the presentation of their case. However, the
statute only allows recovery for exemplifications that were “necessarily obtained for use in the
case,” not for those that merely make trial more efficient, convenient, or expeditious. § 1920(4).
This interpretation is necessary to avoid the allure of expending vast sums of money on
elaborate, professionally prepared exhibits and electronic presentations that might have jury
appeal, but such sensational expense should appropriately be borne at the peril of excessively
imaginative counsel.
This Court is persuaded by Defendant’s argument that the Plaintiffs’ exhibit costs are
unnecessary and therefore unrecoverable for two reasons: (1) the Plaintiffs’ demonstrative
exhibits were all illustrative of expert testimony, other adequate evidence, or served primarily to
illustrate counsel’s argument, see Ex. C (Trial Transcript) at Vol. 22, 52:15-53:18 (supporting
counsel’s closing argument); id. at Vol. 16-B, 29:20-33:23 (aiding expert witness testimony);
and (2) even if the demonstrative exhibits did not fall into any of the aforementioned categories,
they could have been presented to the jury free of charge via the electronic display system in the
courtroom. As such, the Plaintiffs’ demonstrative exhibits were “exemplifications” within the
meaning of § 1920(4), but were not “necessarily obtained,” and the Plaintiffs’ Bill of Costs is
reduced accordingly.
2.

Costs of Displaying Trial Exhibits to the Jury

Plaintiffs seek to recover the costs they incurred in paying their “litigation support
specialist” to manipulate, highlight, and enlarge the exhibits throughout the course of the trial
[ECF # 2395, pg. 14]. They claim this was necessary because it helped the jury understand the
21

evidence. However, the analysis for technical assistance at trial is quite similar to the analysis of
demonstrative exhibits, and accordingly Plaintiffs may not recover their costs for the use of their
in-house support specialist in presenting evidence at trial.
Even if the use of the specialist “furthered the illustrative purpose” of the exhibits
presented, it cannot be said the use of such a specialist was necessary to put on an intelligible
case. See Behlman v. Century Sur. Co., No. 4:12-CV-1567JAR, 2014 WL 2930658, at *1 (E.D.
Mo. June 27, 2014) (disallowing recovery for a trial technician as not falling within the scope of
§ 1920). Plaintiffs’ counsel could have presented their case, as many attorneys trying cases
before this Court have historically done, through the use of PowerPoint or the courtroom
electronic display system rather than hiring a third party vendor. Additionally, the cases
Plaintiffs cite largely conflate two different types of recovery: one type relating to the costs a
party may incur electronically presenting information to a jury, and another for the distinct and
additional costs that may be incurred paying a third party to present that information to a jury.
Where a cheaper, feasible alternative exists for the presentation of evidence to the finder of fact,
costlier options may not be said to be “necessary” within the meaning of § 1920(4), and are
instead merely “glitz” for which the losing party is not obligated to pay. See Hunt v. City of
Portland, No. CV 08-802-AC, 2011 WL 3555772, at *14 (D. Or., Aug. 11, 2011) (citing Cefalu,
211 F.3d at 428); Wheeler v. Carlton, No. 3:06-CV-00068GTE, 2007 WL 1020481, at *11 (E.D.
Ark., Apr. 2, 2007) (no recovery for tech vendor used to display exhibits at trial).
Because the costs Plaintiffs incurred in paying their technology specialist were not
necessary, those costs shall not be taxed to Defendant.
3.

Costs of Video Editing

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Plaintiffs seek the costs associated with the time their in-house technology specialist
spent editing video depositions used at trial [D.E. #2395 at 15]. They assert such editing was
necessary in order to conform their video clips to this Court’s rulings on admissibility. For the
following reasons, the costs associated with editing the video depositions shall not be taxed to
Defendant.
Plaintiffs cite this Court’s decision in Cowden for the proposition that video deposition
editing is a recoverable cost. See Cowden, 991 F.Supp.2d at 1096 (taxing costs for video
deposition editing to the defendant in light of their failure to object). Costs were awarded solely
as a result of the defendant’s failure to object, and not as a result of a reasoned analysis of the
cases or the statute. Baird similarly lacks any explanation as to why video editing qualifies as
“exemplification” or as anything else under § 1920. See Baird v. Dolgencorp, L.L.C., No. 4:11CV-1589 DDN, 2013 WL 5106928, at *3 (E.D. Mo. Sept. 12, 2013). As such, these decisions
are not dispositive of this issue.
While this Court concedes it was necessary for Plaintiffs to have edited their video
depositions so they may adhere to admissibility rulings, and consequently the service was
“necessary” within the meaning of § 1920, video editing does not constitute “exemplification”
under § 1920(4). It does not serve to illustrate something by way of example, and it does not
“further the illustrative purpose” of an exhibit. Cefalu, 211 F.3d 416. The Supreme Court in
Taniguchi instructed that the statute was to be narrowly construed, and the tasks for which
Plaintiffs seek recovery as costs simply cannot be interpreted to fall within the purview of the
term “exemplification.” See Taniguchi, 132 S.Ct. at 2006.
In light of the foregoing analysis, the costs incurred editing videos for trial shall not be
taxed to Defendant.
23

Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ First Amended Bill of Costs [ECF No.
2398] is GRANTED, in part, and DENIED, in part.
IT IS FURTHER ORDERED that Defendant PNC Bank must pay $499,723.20 to
Plaintiffs pursuant to Rule 54(d) of the Federal Rules of Civil Procedure.
So Ordered this 20th day of November, 2015.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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