variously that some of the deponents were never called to testify
at trial, that payment of daily copy premium was improper, and
that many of the depositions were taken for the convenience of
A deposition taken within the proper bounds of discovery, even
if not used at trial, will normally be deemed to be "necessarily
obtained for use in the case," and its cost will be taxed unless
the opposing party interposes a specific objection that the
deposition was improperly taken or unduly prolonged. Perlman v.
Feldmann, 116 F. Supp. 102, 110-111 (D.Conn. 1953); see Electronic
Specialty Co. v. International Controls Corp., 47 F.R.D. 158, 162
(S.D.N.Y. 1969). While an objection was made that the depositions
were unduly prolonged and that they inquired into extraneous
matter, I find that there is no basis for such a contention.
However, I do find that the depositions of Schaefer, Haddow,
Marshall, Fales, Zimmer, DiPirro, Collins, and the nine deponents
who are grouped together in plaintiff's itemized list were not
called upon to testify, but were used for purposes of
investigation and preparation only, and thus were not necessarily
obtained for use in the case. Kaiser Industries Corp. v. McLouth
Steel Corp., 50 F.R.D. 5, 12 (E.D.Mich. 1970). Therefore, the
costs taxed by the Clerk should be reduced by $2,541.65.
As for defendants' objection to the daily copy premium paid for
certain depositions, it is evident that plaintiff was justified
in requesting special service in those instances in which it did
so. Each of several key witnesses was deposed on successive days,
thus justifying the use of daily copy. However, to the extent
that daily copy was improper, the Clerk deducted $1,000 from the
original bill for the premium paid therefor. The Clerk's action
was altogether proper under the circumstances, and I find that he
did not abuse his discretion in making the reduction.
The cost of deposition transcripts and attendance is therefore
assessed at $15,941.72.
E. Copying Expenses
The Clerk taxed costs of $3,240.52 for copies of exhibits and
documents. Defendants Sherman, Morris, Nowak, Racina and Kowalko
object thereto on the grounds that plaintiff has failed to
itemize the documents copied and that the documents copied were
not "necessarily obtained for use in the case."
28 U.S.C. § 1920(4).
It is obvious that in a long and complicated case such as the
instant one, many documents were required to be copied by
plaintiff in order to prepare its case. It would be unduly
burdensome to require plaintiff to list each document copied.
Plaintiff's counsel has verified the amount spent for copying,
28 U.S.C. § 1924, and defendants do not challenge that verification.
Moreover, the proof in this bank fraud case relied heavily upon
documents, and it is reasonable to assume that many supporting
documents were necessary to convey an understanding of the real
estate transactions underlying the fraud. Therefore, under all
the circumstances of this case, I find that the Clerk's
assessment of $3,240.52 as copying costs was proper. See Gillam
v. A. Shyman, Inc., 31 F.R.D. 271, 274 (D.Alaska 1962).
F. Apportionment of Costs Among Defendants
The Clerk made no apportionment of costs among defendants,
instead assessing the entire amount of costs allowed against all
six defendants. Objection has been made by defendants Sherman,
Morris, Nowak, Racina and Kowalko, who argue that the costs of
the lawsuit should somehow be apportioned to reflect the three
separate recoveries under two counts, and that some concession
should be made to the fact that plaintiff did not succeed on all
issues. See Steel Construction Co. v. Louisiana Highway Comm.,
60 F. Supp. 183, 193 (E.D.La.
1945). In response, plaintiff has offered an alternative for
apportioning costs, in which the cost borne by each defendant
bears the same relationship to the total cost as the judgment
against each defendant bears to the total judgment. Schauffler v.
United Association of Journeymen & Apprentices of Plumbing and
Pipe Fitting Industry, 148 F. Supp. 704, 708 (E.D.Pa. 1956),
aff'd, 246 F.2d 867 (3d Cir. 1957).
Plaintiff succeeded in proving its case under both counts of
the complaint, and indeed, it proved liability for both the
Riverwoods and Vernon Hills transactions under Count I, hence no
concession need be made by plaintiff. Defendants are liable for
the full amount of the costs assessed by the court. Local 205,
United Electrical Workers v. General Electric Co., 172 F. Supp. 960,
961 (D.Mass. 1959).
Moreover, this is not a case in which costs should be
apportioned among defendants, either in the manner suggested by
Schauffler or in the manner suggested in Appendix A of Morris'
brief. The cost of plaintiff's proving its case against each
defendant was roughly the same, and it would therefore be unwise
to try to somehow break down the total cost into individual
Therefore, no apportionment of costs will be made, and no
concession need be made by plaintiff for issues on which it did
The post-trial motions of defendants Quinn Hogan, Vernon
Sherman and Jerome Morris for judgment notwithstanding the
verdict are all denied.
Costs of the trial are taxed against defendants Vernon Sherman,
Jerome Morris, Joseph Nowak, Quinn Hogan, Joseph Racina and
Edward Kowalko in the amount of $25,215.36.*fn1