claim, making copies for this Court was totally unnecessary--it would have been far preferable to deliver the original depositions to this Court for its consideration in ruling on the summary judgment motion (indeed, the practice of some litigants in delivering to this Court only portions of depositions, rather than the entire depositions together with the references called for by this District Court's GR 12(m) and (n), often creates serious problems in addressing Rule 56 motions).
Nor can Packaging's final catch-all category be approved, for several of its components are plainly problematic--"copies of key cases" is only an example. Though it is of course even more difficult for this Court to quantify the disallowable numbers of copies with precision than it was for Packaging to quantify its request in retrospect, this Court will reject about one-third of that catch-all number (1,925 copies) as most likely representing items of convenience rather than necessity.
In summary, the requested 15,985 copies are thus reduced to 11,060 copies. And this Court also rejects the notion of shifting to Jansen the burden of paying Packaging's entire charge to its client at $ .20 per page, when photocopying is commercially available at a lower figure (in that regard Packaging has not quarreled with Jansen's representation that "the reasonable and customary charge is $ .08 per page"). That reduces the allowable photocopying costs to $ 884.80.
Expert Witness Fee
Packaging's final item seeks $ 3,740 for the services of Dr. Rossiter, the psychiatrist whom it retained to conduct a psychological evaluation of Jansen. It seeks to bootstrap that request by pointing (1) to this Court's earlier opinion granting Packaging's motion for leave to conduct such an examination (158 F.R.D. 409) and (2) to this Court's later January 6, 1995 denial of Packaging's motion to require Jansen to pay one-half of the psychiatrist's fees up front (in the latter respect, Packaging points to the fact that this Court reserved to a later date the issue of ultimate responsibility for those fees).
Once again Packaging has not presented matters fairly. For one thing, it is wholly inaccurate to characterize Dr. Rossiter as a "court-appointed" independent expert (R. Mem. 4)--it was solely Packaging's decision to retain an expert over Jansen's objections, and this Court then simply required that the expert to be used by Packaging must be independent rather than a hired gun (thus the situation was in sharp contrast to the procedure for "court appointed experts" contemplated by Fed. R. Evid. 706). And on the merits, Crawford Fitting has expressly rejected the power of federal courts "to require a losing party to pay the compensation of the winner's expert witnesses" (482 U.S. at 438) except as specified in Sections 1920 and 1821 ( id. at 445). In summary, this final component of Packaging's request is denied.
As indicated earlier, there is case law authority for a district court to disallow part or all of a prevailing party's request for fees for "misconduct...worthy of a penalty." Although the examples of such misconduct set out in Congregation of the Passion, 854 F.2d at 222 do not cover the specific conduct involved here on Packaging's part--attempting to enlarge its costs award in some plainly impermissible ways--this Court views that activity as calling for a diminished award (as it did in Nochowitz v. Ernst & Young, 864 F. Supp. 59, 61 (N.D. Ill. 1994)), both as a modest sanction for the offending litigant and as a deterrent to any attempt at similar overreaching by other litigants in other cases.
This Court has considered that possibility of a partial disallowance in light of the several respects, discussed earlier in this opinion, in which Packaging's request for taxation of costs represents material overreaching on its part. It has concluded that some price may reasonably be imposed on a litigant such as Packaging for having put its adversary and this Court to work in converting what should be a pro forma exercise (the submission and approval of a conventional bill of costs) into a "federal case" (albeit of modest proportions) by making some claims that do not bear a semblance of merit.
To that end a modest reduction in the amounts approved in this opinion is in order. This Court will accordingly reduce the allowable costs by 20%.
For the reasons previously stated in this memorandum opinion and order, Packaging's motion for taxation of costs in the aggregate sum of $ 14,275.46 is denied. Instead this Court awards as costs 80% of the sum of (1) $ 5,054.59 plus (2) such portion (if any) of the $ 2,333.55 "copies of the transcripts" item as may be allowed. In that latter respect, Packaging is ordered to supplement its prior submissions with an appropriate further explanation on or before October 6, 1995.
Milton I. Shadur
Senior United States District Judge
Date: September 26, 1995