Astrazeneca AB, et al v. Lek Pharmaceutical, et al
Filing
126
OPINION AND ORDER: For the foregoing reasons, the Court GRANTS Lek's application to tax costs against Astra subject to the limitations set forth in this Opinion. The Court has determined that $569,245.89 of Lek's requested costs are p roperly taxable. Lex is directed to submit to the Clerk of Court a revised application to tax costs against Astra in accordance with the Court's rulings within thirty (30) days of this Opinion. (Signed by Judge Barbara S. Jones on 11/6/2012) (ae)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--- --- ---x
In re OMEPRAZOLE PATENT LITIGATION :
USDC SONY
DOCUMENT
ELECTRONICALLY FILED
DOC# ____~-r~__- ,__-
DATE FILED:·
II/01/'];1JIYC()
M-21-81 (BSJ)
MDL Docket No. 1291
ASTRAZENECA AB, et al.,
00 Civ. 4541 (BSJ)
03 Civ. 8719 (BSJ)
Plaintiffs,
LEK PHARMACEUTICAL AND CHEMICAL
CO., D. D., et al.,
Opinion and Order
Defendants.
--- --- --- --- ----x
BARBARA S. JONES
UNITED STATES DISTRICT JUDGE
On July 18, 2007, Defendants Lek Pharmaceutical and
Chemical Co., D.D., et al.
("Lek"), submitted to the Clerk of
Court an application to tax costs ("Application") pursuant to
28 U.S.C.
§
1920, Federal Rule of Civil Procedure 54(d) (1), and
Rule 54.1 of the Local Civil Rules of the United States District
Court for the Southern District of New York, against Plaintiffs
Astrazeneca AB, et al.
$1,171,791.76.
("Astra"), in the amount of
Lek subsequently amended its Application to
request a total of $1,177,733.52.
For the reasons stated below,
the Court GRANTS Lek's request to tax costs against Astra,
subject to the limitations set forth in this Opinion.
BACKGROUND
On June 18, 2007, the Court entered judgment in favor of
Lek against Astra.
Lek submitted its request to tax costs
against Astra on July 18, 2007.
Astra submitted objections to
1
the Application on August 17, 2007, Lek replied to those
objections on September 12, 2007, and Astra filed a sur-reply in
opposition to Lek's requested costs on September 20, 2007.
On June 28, 2010, the Court issued an Opinion and Order
("June 2010 Opinion") granting Astra's application to tax costs
against three of the First Wave defendant
, which addressed the
proper methodology for determining the appropriate taxable costs
in this litigation.
Specifically, the Court found that "because
'the claims and defenses of each defendant in the litigation
were inextricably intertwined, it is practically
impossible .
. to accurately divide the deposition or trial
testimony into portions attributable to individual defendants. '"
(June 2010 Opinion, slip op. 7 (citation omitted).)
In
addition, the Court held that Astra's request for the cost of
airfare for its witnesses did not comply with 28 U.S.C.
§
1920(c) (1) because, inter alia, Astra's documentation was
insufficient, as it listed airfare prices at the time of
submission rather than the actual costs at the time of travel.
(June 2010 Opinion, slip op. 8.)
Finally, the Court also
limited recovery of witness subsistence costs to the maximum per
The Court deemed Astra the prevailing party against Andrx Pharmaceuticals,
Inc. ("Andrx"), Cheminor Drugs, Ltd., Reddy-Cheminor, Inc., and Schein
Pharmaceutical, Inc. (\\Cheminor"), and Genpharm Inc. ("Genpharm).
In its
June 2010 Opinion and Order, the Court granted Astra's application as to
Genpharm, subject to the limitations set forth in the Opinion and Order.
1
2
diem allowance prescribed by the General Services
Administration.
(June 2010 Opinion, slip op. 9.)
Following the June 2010 Opinion, Astra submitted a sur
surreply on July 7, 2010, which supplemented its objections
based on the Court's reasoning in the opinion.
On July 19
1
2010, Lek submitted a supplemental response in further support
of its application to tax costs.
On September
41
2010, the Court issued an Order granting
the prevailing First Wave defendants,2 motion to vacate and amend
the Judgment Clerk's initial denial of KUDCO/S application to
tax costs against Astra ("September 2010 Opinion") .
In that
opinion, the Court decided how to reconcile the different
categories of taxable costs laid out in 28 U.S.C.
§
1920 and
Local Civil Rule 54.1, concluding that "the Court will tax all
costs enumerated in 28 U.S.C.
§
1920 except that, to the extent
that Local Civil Rule 54.1 speaks to a specific cost
provisions govern."
l
its
(September 2010 Opinion, slip op. 6.)
In
addition, the Court responded to Astra/s objections to a variety
of KUDCo/s requested costs
l
including photocopy costs, exhibit
copy costs, scanning and coding costs
l
copy costs for
Ie
The Court found that Kremers Urban Development Co. and Schwarz Pharma, Inc.
(collectively, \\KUDCo/) were prevailing parties against Astra in the first
wave of litigation.
In its September 2010 Opinion, the Court granted KUDCo's
motion to vacate and amend the Judgment Clerk's denial of KUDCo's application
to tax costs, subject to the limitations set forth in the Opinion.
Subsequently, the Court granted KUDCo's revised application to tax costs,
which comported with the September 2010 Opinion.
2
3
histories, prior art and other references, hearing and
deposition transcript costs, daily trial transcript costs,
LiveNote costs, interpreting and translating costs, trial
presentation costs, and witness subsistence and travel costs.
Where applicable, the June 2010 and September 2010 Op
ons
will govern the Court's determination of Lek's taxable costs. 3
DISCUSSION
I. Legal Standard
Costs other than attorneys' fees generally are awarded to
the prevailing party under Federal Rule of Civil Procedure
54 (d) (1) .
See Dattner v. Conagra Foods,
(2d Cir. 2006).
Inc., 458 F.3d 98, 100
Rule 54(d) (1) states in relevant part:
Unless a federal statute, these rules, or a court
order provides otherwise, costs-other than attorney's
fees-should be allowed to the prevailing
party .
The clerk may tax costs on 14 days'
notice.
On motion served within the next 7 days, the
court may review the clerk's action.
However, the term "costs" as used in Rule 54 "includes only
the specific items enumerated in 28 U.S.C.
Whitfield v. scul
omitted) .
§
1920 (1994)."
, 241 F.3d 264, 269 (2d Cir. 2001)
(citations
That statute lists six categories of expenses that
may be taxed as costs:
(1) fees of the clerk and marshal;
(2)
Lek argues that the Court's previous cost decisions should be applied
consistently only to the extent that they are applicable to objections made
by Astra in its initial submissions, which it submitted prior to the Court's
2010 opinions.
(Lek Supp. Letter at 2 n.2.)
The Court disagrees. To
achieve full consistency across all of the applications to tax costs, the
Court must apply its previous rulings consistently, whether or not certain
objections had been made prior to the June 2010 and September 2010 Opinions.
3
4
fees for transcripts necessarily obtained for use in the case;
(3) fees for printing and witnesses'
(4) fees for
exemplification and copies where necessarily obtained for use in
the case;
(5) docket fees under 28 U.S.C. § 1923; and (6)
compensation of experts and interpreters.
See 28 U.S.C.
§
1920.
"After the prevailing party demonstrates the amount of its
1 within an allowable category of taxable
costs and that they
costs, that party enjoys a presumption that its costs will be
awarded./I
Natural Organics, Inc. v. Nutraceutical Corp., No. 01
Civ. 0384 (GBD) (RLE) , 2009 WL 2424188, at *2
2009)
(S.D.N.Y. Aug. 6,
(quotation marks and citations omitted).
However, the
court has authority to review, adjust, or deny an award of
costs, and that decision "is committed to the sound discretion
of the district court."
Cosgrove v. Sears, Roebuck, & Co., 191
F.3d 98, 102 (2d Cir. 1999)
omitted).
(quotation marks and citation
The Supreme Court has cautioned that "the discretion
given district judges [by Rule 54(d)] to tax costs should be
sparingly exercised with reference to expenses not specifi
allowed by statute."
227, 235
II.
ly
Farmer v. Arabian Am. Oil Co., 379 U.S.
(1964).
Costs
As the Court ruled previously, the Court will tax all costs
enumerated in
§
1920 except that, to the extent that Local Civil
5
Rule 54.1 speaks to a specific cost, its provisions govern.
(September 2010 Opinion, slip op. 6.)
Lek has requested a total
Bill of Costs (Corrected) at 2.)
$1,177,733.52 In costs.
(Lek
Astra states that it does not
object to $168,894.08 of Lek's total requested costS.4
(Astra
Specifically, Astra does not challenge
Sur-Surreply at 2.)
Lek's costs for Special Master fees in the amount
$80,772.58,
and Astra has agreed to various other categories of costs in the
amount of $88,122.50.
With regard to its objections, Astra argues generally that
Lek should not be paid for costs related to trial and deposition
testimony about issues related exclusively to infringement and
invalidity claims brought by other defendants.
Objections at 3.)
(Astra
In its June 2010 Opinion, the Court held that
"because the claims and defenses of each defendant in the
1
igation were inextricably intertwined, it is practically
impossible
. to accurately divide the deposition or trial
testimony into portions attributable to individual defendants."
(June 2010 Opinion, slip op. 7
tation omitted).)
The Court
Astra's Sur~Surreply preceded Lek's supplemental submission in which Lek
corrected a previous arithmetic mistake.
In Astra's Sur-Surreply, as
discussed further below, Astra changed its position from objecting to the
costs of a few trips to objecting to Lek's entire request for witness airfare
costs. At that time, Astra relied on Lek's previous submissions, which
listed the total witness costs as $70,943.11. Subsequent to Astra's Sur
Surreply, Lek submitted a corrected Bill of Costs, which lists the total
airfare costs as $76,884.87. The discrepancy is not important, as the Court
addresses each category of contested costs in turn and has made its own
calculations.
4
6
is of the same opinion with respect to the Second Wave cases and
sees no reason to depart from its previous ruling concerning the
rst Wave defendants.
Accordingly, the Court will award all
properly taxable costs requested by Lek, regardless of whether
they were used in Astra's case against Lek.
The Court now turns to the various categories of costs.
A. Transcript Fees
a. Daily Trial Transcripts
Section 1920 provides for taxation of costs related to
printed or electronic transcripts.
28 U.S.C.
§
1920(2).
Local
Civil Rule 54.1(c) (1) provides in relevant part that "[t]he cost
of any part of the original trial transcript that was
necessarily obtained for use in this Court or on appeal is
taxable.
Convenience of counsel is not sufficient."
Lek requests $42,240.66 in costs for trial transcripts.
Astra first objects to a portion of these charges because it
argues they cover costs of unnecessarily obtaining trial
transcripts for parts of the trial that did not involve Astra's
claims against Lek.
(Astra Objections at 6-7.)
The Court has
already determined that it will not endeavor to separate
portions of trial testimony as related to one defendant or
another.
Lek should recover all of
s taxable costs, which
include the costs of obtaining daily trial transcripts.
7
Second, Astra objects to charges for minuscripts,
diskettes, and Real Time translations of the daily trial
transcripts, which it argues were not "necessarily obtained" for
use in the case.
(Astra Objections at 6-7.)
Lek counters that
the complexity of the case combined with the fact that many
parties and witnesses are non-English speakers and the Court's
order to produce daily errata sheets warrant recovery of these
additional transcript costs.
(Lek Reply at 3-4.)
To support its position, Lek cites to Liberty Theatres Inc.
v. Becker, 201 F.3d 431, 1999 WL 1070076 (Table)
(2d Cir. 1999),
where the court awarded costs associated with daily transcripts,
minuscripts and diskettes.
Astra underscores the distinction
between Liberty Theatres and this case, namely that the
Theatres trial court had awarded costs for minuscripts and
diskettes because "none of the parties either specifically asked
for nor objected to [these forms of transcriptions].
(alteration added).
Id. at *2
The appellate court did not reach the
question of whether the trial court abused its discretion in
awarding costs for minuscripts and diskettes.
The Court agrees with Astra that minuscripts, diskettes,
and Real Time translations are not essential to the production
of daily errata sheets and are merely for the convenience of
8
counsel. S
Accordingly, the Court limits Lek's requested trial
transcript costs to the original transcript charges only, which
totals $17,047.36.
b. Deposition Transcripts
Local Civil Rule 54.1 provides in relevant part that
"[u]nless otherwise ordered by the Court, the original
transcript of a deposition, plus one copy, is taxable if the
deposition was used or received in evidence at the trial
Costs for depositions taken solely for discovery are not
taxable."
Lek requests deposition transcript costs in the
amount of $227,012.58.
Astra objects that Local Civil Rule 54.1(c) (2) precludes
recovery by Lek of costs related to depositions that were not
used or received in evidence in relation to Astra's case against
Lek and were not used by the Court in ruling on a dispositive
motion concerning Lek.
added) . )
(Astra Objections at 9 (emphasis
Astra concedes that "designations in this case were
made in a consolidated manner," and therefore all designated
depos
ions were introduced and received into evidence against
all defendants.
(Astra Surreply at 5.)
Astra does not dispute
The Court has considered Lek's argument that costs for minuscripts were
included in the manuscript costs deemed taxable in the First Wave of
litigation and should therefore be deemed taxable here.
(Lek Supp. Letter at
3 n.4.)
The issue of minuscripts was not raised in the First Wave costs
briefing, and the Court finds that because the invoices presented here
delineate between manuscript, diskette, real time, and original manuscript
charges, the Court will award only those costs that are necessary.
5
9
that all of the depositions for which Lek seeks reimbursement
were designated and introduced and received into evidence.
Consistent with its previous decisions
l
the Court will tax costs
against Astra for one original transcript and one copy of all
depositions introduced and received into evidence in relation to
any party during the trial.
Astra next objects to charges for additional deposition
transcript costs covering ASCII fees
video fees
l
exhibit fees
l
Real Time/LiveNote fees
and court reporter appearance fees
l
l
l
as
beyond the scope of taxable costs under Local Civil Rule
54.1(c)(2).
(Astra Objections at 8 9.)
Of these categories
exhibit fees are taxable
fees
the Court finds that only
l
as exhibits are a necessary part of an
l
original deposition transcript.
See Internet Law
----------------~----~~~~
_v_.________~~__~______~____L L~CI Nos. 01 Civ. 6600 (JSR)
. __
0877 (JSR)
I
Aug. 11
I
2010 WL 3290965
01 Civ.
2 010) .
I
02 Civ. 0138 (JSR)
I
1
at *8 (S.D.N.Y.
Video fees have been deemed taxable where "there was an
expectation among the parties that the video of the testimony
might be presented at trial [.]
table Life Ins. CO'
*3-4 (S.D.N.Y. July 18
Tupungato
l
1
I
No. 09 CV 8685(HB)
2011)
1
2008)).
LLC v. AXA
I
2011 WL 2848644
(quoting Ferrostaal
No. 03 Civ. 4885(MGC)
(S.D.N.Y. July 16
Settlement
II
I
2008 WL 2796644
1
at
Inc. v.
1
at *3
Lek does not seek reimbursement for
10
video fees related to every deposition; however, it has made no
to establish with any specificity that the part
at trial
reasonably believed that video testimony would be
for the depositions for which it charges video fees.
The Court has previously rejected requests to tax costs for
LiveNote services!
(September 2010 Opinion! slip op. 12), and
the same reasoning applies to Real Time costs.
In addit
courts in this District have determined that court reporter
appearance fees and ASCII fees are not taxable.
See e.g.,
Farberware Licensing Co. LLC v. Meyer Mktg. Co., Ltd., No. 09
Civ. 2570(HB), 2009 WL 5173787, at *5-6 (S.D.N.Y. Dec. 30, 2009)
(finding that fees for expedited service, delivery costs,
appearance fees, and rough diskettes and/or ASCII disks are not
taxable), aff'd, No. 10 Civ. 0384, 2011 WL 2618722
(2d Cir. July
05, 2011).
Accordingly, the Court will only tax costs against Astra
for the original transcript, one copy thereof, and exhibit fees.
The Court will award to Lek deposition transcript costs in the
amount of $122,052.45.
B. Witness Fees, Mileage, Subsistence
Section 1920 provides
28 U.S.C.
~[f]ees!
§
1920(3).
taxation
fees
witnesses.
Under Local Civil Rule 54.1(c) (2),
mileage! and subsistence for the witness at the
deposition are taxable at
same rates as for attendance at
11
trial if the deposition taken was used or received in evidence
at the trial."
In addition, Local Civil Rule 54.1(c) (3)
provides that " [w]itness fees and travel expenses authorized by
28 U.S.C. § 1821 are taxable if the witness testifies 6 .
Subsistence pursuant to 28 U.S.C.
§
1821 is taxable if the
witness testifies and it is not practical for the witness to
return to his or her residence from day to day."
U.S.C.
§
1821(c) (1)
I
Under 28
"[a] witness who travels by common carrier
shall be paid for the actual expenses of travel" and "[s]uch
witness shall utilize a common carrier at the most economical
rate reasonably available.
A receipt or other evidence of
actual cost shall be furnished."
Lek has requested witness fees in the amount of $76,884.87. 7
Astra first objects based on a reprise of its argument that Lek
should not recover costs related to depositions not used or
received in evidence in
ation to Astra's case against Lek.
(Astra Objections at 10.)
For the reasons discussed above, the
Court rejects this argument.
The Court has determined that a witness "testifies" for the purposes of
Local Civil Rule 54.1 (c) (2) when he or she testifies at trial.
(See
September 2010 Opinion, slip op. 13.)
7 Lek originally listed witness travel and subsistence costs as $70,943.11,
which was inaccurate.
Lek corrected the amount in its supplemental
submission to the Court dated July 19, 2010.
6
12
In light of the Court's June 2010 Opinion, Astra objects to
all of Lek's requested witness airfare costs S because Lek
"fail [ed] to provide evidence of the price of the most
., at the time of travel."
economical airfare,
(Astra Sur
Surreply at 2.)
Here, Lek concedes that it "estimated the cost of economy
airfare by using an [sic] discount internet travel site and
comparable dates to those actually traveled by the witness.
Since [Lek] could not find airfare prices for 2006,
prices for 2007 or 2008."
(Lek Reply Decl.
~
16.)
[Lek] used
In the June
2010 Opinion, the Court rejected Astra's requested travel costs
in part because the rates Astra listed
lected prices at times
other than during the actual dates of travel.
Opinion, slip op. 8.)
(June 2010
Lek has used the same process, and has
not provided a "receipt or other evidence of actual cost" as
required by 28 U.S.C.
§
1821.
For
s reason, the Court will
not award Lek's costs for witnesses' airfare.
Court has considered Astra's remaining objections to
Lek's witness fees request and finds them to
without merit.
Astra states incorrectly that the $70,943.11 to which it objects represents
"the entire amount . . . that Lek seeks for witness flight costs."
(Astra
Sur-Surreply at 2.)
In fact, $70,943.11 was the total amount that Lek
originally requested for all costs associated with witness travel, mileage,
and subsistence, which it subsequently amended to account for an arithmetic
correction. The Court understands Astra's objection to be against all of the
witness airfare costs requested by Lek.
8
13
The Court will therefore award Lek witness costs for mileage and
subsistence in the amount of $38,965.54.
C. Interpreting and Translating Fees
Section 1920 provides for recovery of costs for
compensation
interpreters.
28 U.S.C.
§
1920(6).
reasonable fee of a competent interpreter is taxable if the fee
of the witness involved is taxable. The reasonable fee of a
translator is also taxable if the document translated is used or
received in evidence."
Local Civ. R. 54.1(c) (4).
Lek has
requested compensation for interpreting and translating in the
amount
Astra objects to costs for interpreting during certain
depositions which it claims were not introduced or received in
evidence in the case against Lek.
rejects this argument.
As discussed above, the Court
However, the Court agrees with Astra
that a cost of $1,000.00 for an interpreter to
to
interpret for Slovene witnesses is not a taxable cost.
With regard to Lek's translation costs, Astra takes issue
with the vagueness of Lek's documentation.
Lek appears to have
listed its entire exhibit list as documentation of its
translation costs, explaining that its calculus is based on
having
~reconstructed
from [Lek's] own records, the dates, and
the identity of the translation service, as well as [Lek's]
recollections, that these are the bills for the translations of
14
the trial exhibits."
Reply at 9.)
Between the records Lek
has provided to the Court and the attorney declaration
submitted, the Court is satisfied that Lek has met its burden of
demonstrating that the translation costs for which it seeks
reimbursement are only for documents used or received into
evidence at trial.
The Court will award $83,269.81 in interpreting and
translating costs.
D. Copies of Trial Exhibits
Local Civil Rule 54.1 addresses trial exhibits as well: "A
copy of an exhibit is taxable if the original was not available
and the copy was used or received in evidence.
The cost of
copies used for the convenience of counselor the Court are not
taxable."
Local Civ. R. 54.1{c) (5).
Lek has requested costs
for copies of trial exhibits in the amount of $4,467.00.
Astra
objects to the entire amount.
Astra argues first that Lek has not identified which
exhibits on its exhibit lists were in fact used or received into
evidence at trial and that Lek's requested copying costs should
be reduced by a significant portion on that basis alone.
Objections at 12 13.)
(Astra
acknowledges that the copying
invoices it has submitted "cover many more copies and many more
documents than were received or used as exhibits."
at 9.)
(Lek. Reply
To recover photocopying costs, "the requesting party
15
must at least specify what portion, if any, of the copying costs
were incurred in creating exhibits that were used at t
received in evidence."
Natural
al or
s, 2009 WL 2424188, at *7
----------~~----
(quotation marks, citation, and alterations omitted).
Lek has
not made this threshold demonstration.
Astra also argues that Lek has provided no explanation
estimating that copying costs were $.10 per page or $20.00 per
CD, and that the documents averaged ten pages per exhibit.
(Astra Objections at 13.)
Lek responds that U[c]ounting the
exact number of pages of each exhibit would be unduly burdensome
and time consuming," and that the records it provided to the
Court Uare the best available from
records of the case."
(Lek Reply at 9.)
Though burdensome, the Court sees no reason why Lek could
not provi
an accurate accounting of the number of pages and
copying costs associated with exhibits actually used or received
into evidence at trial.
The Court finds that Lek has failed to
demonstrate that these requested copying costs fall within an
allowable category of taxable costs and denies all of
costs.
E. Preparation of Models, Photographs, and Summaries
Lek asks for $612,145.18 in charges for models, photographs
and summaries/ and has divided these costs into three
categories:
(1) $558/885.03 for preparation of demonstratives by
16
Chicago Winter Graphics, a company that creates trial graphicsi
(2) $47,662.50 for expert analysis of trial demonstratives; and
(3) $5,597.65 in rental fees for technological equipment for the
courtroom.
Section 1920(4) provides for recovery of "[f]ees for
exemplification .
. necessarily obtained for use in the case."
Under Local Civil Rule 54.1(c) (6),
[t]he cost of photographs, 8" x 10" in size or less, is
taxable if used or received in evidence. Enlargements
greater than 8" x 10" are not taxable except by order of
the Court. Costs of maps, charts, and models, including
computer generated models, are not taxable except by order
the Court. The cost of compiling summaries, statisti
comparisons and reports is not taxable.
Courts in other circuits disagree about whether the
reference in 28 U.S.C.
demonstrative aids.
§
1920(4) to "exemplification" includes
Compare ------------~--~~----~~~~~ , 211
Cefalu v. ViII
of Elk
F.3d 416, 427 (7th Cir. 2000)
(term "exemplification" includes
"a wide variety of exhibits and demonstrative aids"), with
Arcadian Fertilizer, L.P. v. MPW Indus. Servs., Inc., 249 F.3d
1293, 1297 (11th Cir. 2001)
(term "exemplification" includes
only "an official transcript of a public record, authenticated
as a true copy for use as evidence")
Dictionary 593
omitted».
(7th ed. 1999)
(quoting Black's Law
(quotation marks and alteration
The Court concludes, as at least one other court in
this District has, that 28 U.S.C.
§
1920(4) provides for
taxation of costs related to trial demonstratives.
See DiBella
v. Hopkins, 407 F. Supp. 2d 537, 539 (S.D.N.Y. 2005).
17
Astra argues that Lek is not entitled to any costs related
to demonstratives because Local Civil Rule 54.1(c) (6) explicitly
prohibits recovery of costs for computer generated models and
similar aids without court order and that " [t]here is no
such Court order in this case."
(Astra Objections at 14.)
However, "that rule simply requires that the Court assess any
such costs, rather than the Clerk, who otherwise det
should be assessed."
at *1.
what
2011 WL 2848644,
Settlement
Courts in this District have applied this discretion to
tax such costs where
~the
cost is reasonable and
in the efficient and effective presentation
DiBella, 407 F. Supp. 2d at 540; see
devices aid
evidence[.]"
tvater Gessler-J.A.
_B_a_c_z_e_w__k_i__I_n_t '_l__~__~_I_n_c ____.__S_o_b i_e_S_k_l_'_D___~~__~__S~._A_., No. 06
_s
__
_. v
__
_e
Civ. 6510 (HB) , 2011 WL 2893087, at *7 (S.D.N.Y. July 14, 2011)
(taxing portion of requested costs
trial demonstratives where "the vi
ated to preparation of
ds presented at trial
were helpful to the jury and the court by focusing attention on
the salient documents and concepts"); Farberware Licens
2009 WL 5173787, at *8 (
lowing partial recovery of expenses
for trial consultants who
graphics presented at t
Co. ,
the bulk of the trial
,where the visual aids were helpful
to the bench and jury) .
During the bench t
models aided
in this case, Lek's graphics and
efficient and effective presentation of
18
complex evidence and were extremely helpful to the Court.
The
Court concludes that Lek is entitled to recover reasonable costs
for the preparation of its trial demonstratives and aids.
However, Lek's requested costs
the trial graphics work
appear to be unreasonably high.
In reviewing the invoices
submitted, it appears that at least two hundred thousand dollars
of charges are for time spent by employees of Chicago Winter
Graphics providing
t
~on-site
support."
that these costs are not essenti
The court finds
to the preparation of Lek's
trial demonstratives and will not tax them.
In addition, while
Lek made an effort to limit
r requested costs only to time
or material for preparation
demonstratives (Lek Reply Decl.
~
24), they seek reimbursement for travel expenses and other
inc
s, which are not properly taxable.
charges
expenses and on-
that costs in the amount
preparation of Lek's t
Having excluded
te trial support, the Court finds
$220,000.00 are reasonable for the
demonstratives.
In addition to the reasonable costs for preparing Lek's
demonstratives, reasonable costs related to the courtroom
equipment that made it possible to utilize the demonstratives
are also taxable.
Astra offers no authority for its assertion
that the prevailing party may not seek reimbursement for their
of costs because the parties all
courtroom equipment costs.
to share the
(Astra Objections at 15.)
19
The Court
finds
$5,597.65 requested by Lek for courtroom
equipment
was essential to the effectiveness of Lek's
demonstrat
is reasonable and therefore taxable.
Finally,
Court agrees with Astra that fees for expert
witnesses are only
, absent a prior order by the court,
to the extent that
witnesses' costs are taxable, which is
limited by Local Civil Rule 54.1 to fees, mileage, and
subsistence and if
witness testified at trial or if the
witness's deposition was introduced and received into evidence.
See Harris Trust & Sav.
v. John Hancock Mut. Life Ins. Co.,
137 F. Supp. 2d 351, 360 (S.D.N.Y. 2001)
(citation omitted).
Expert fees associated with time spent helping Lek prepare its
case are not taxable.
Accordingly, the Court will tax against Astra costs related
to Lek's trial demonstratives
the amount of $225,597.65.
F. Special Master
Astra does not object to recovery of fees charged by the
Special Master, and the Court finds
Lek should recover all
of these requested costs in the amount of $80,772.58.
G. Miscellaneous Fees
Local Civil Rule 54.1{c) (10) provides, under
heading
"Docket and Miscellaneous Fees," that " [dJocket fees, and the
reasonable and actual fees of the Clerk and of a
sheriff, and process server, are taxable unless otherwise
20
ordered by the Court."
Lek has requested three categories of
costs which it has labeled as "miscellaneous":
to two cancelled depos
ions,
(1) costs related
(2) costs related to a court
ordered visit of Lek's plant, and (3) costs of preparing a
electronic brief.
court-ordered post
Astra objects to all
costs as outside the scope of allowable costs.
of
(Astra
Objections at 16-18.)
The Local Civil Rule reaffirms the Court's discretion to
review and adjust an application to tax costs.
See Local Civ.
R. 54.1(c) (10); Cosgrove, 191 F.3d at 102 (quotation marks and
citation omitted).
minute.
Astra cancelled two depos
ions at the last
Lek seeks recovery of travel expenses for the two
witnesses who had already t
depositions.
cancellation.
ed to New York for their
The parties dispute the cause
While the Court might be
costs for these witness fees, Lek has fail
documentation
ined to award some
to provide
the actual travel costs at the time of travel
these witnesses.
will not tax
the last minute
As discussed above, the Court therefore
travel costs.
Lek also seeks subsistence
fees that far surpass the maximum per diem allowance prescribed
by the General Services Administration, to which witness
subsistence costs must be limited.
op. 9.)
(See June 2010 Opinion, slip
The Court therefore will award $259.00 per witness per
day in relation to the cancelled depositions, for a total of
21
$518.00.
See FY04 Domestic Per Diem Rates, available at
http://www.gsa.gov/portal/content/103168#Rates.
With regard to the requested costs
ated to production of
the hyperlinked post-trial findings of fact and conclusions of
law, those costs fall squarely within the category of attorneys'
fees, which are not taxable.
Local Civ. R. 54.1(c) (7).
Lek seeks costs associated with attorney travel expenses
and video fees for a plant visit that the Special Master ordered
during discovery.
The Court believes that reasonable costs
associated with the plant visit should be taxable.
However, the
Court will not tax travel expenses for Lek's attorneys, as those
costs also fall squarely within the category of attorneys' fees,
which are not taxable under Local Civil Rule 54.1(c) (7).
The
Court will grant costs associated with videotaping the visit.
Accordingly, the Court will tax against Astra miscellaneous
costs in the amount
$1,540.50.
CONCLUSION
For the foregoing reasons, the Court GRANTS Lek's
application to tax costs against Astra subject to the
limitations set forth in this Opinion.
The Court has determined
that $569,245.89 of Lek's requested costs are properly taxable.
is directed to submit to the Clerk of Court a revised
application to tax costs against Astra in accordance with the
Court's rulings within thirty (30) days of this Opinion.
22
SO ORDERED:
BARBARA S. J
S
UNITED STATES DISTRICT JUDGE
Dated:
New York, New York
November 6, 2012
23
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