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JANSEN v. PACKAGING CORP. OF AMERICA

September 26, 1995

ALICE JANSEN, Plaintiff,
v.
PACKAGING CORPORATION OF AMERICA, Defendant.



The opinion of the court was delivered by: SHADUR

 On August 23, 1995 this Court granted the Fed. R. Civ. P. ("Rule") 56 motion of Packaging Corporation of America ("Packaging") for summary judgment in this employment discrimination action brought against Packaging by Alice Jansen ("Jansen"). Packaging has since moved for the taxation of costs pursuant to Rule 54(b) and this District Court's General Rules ("GRs") 45 and 46, *fn1" Jansen's counsel has responded with a set of objections and Packaging's counsel has filed a reply memorandum. Accordingly the motion for taxation of costs is now ripe for decision.

 Taxability in General

 Jansen initially asserts that she should not be liable for any costs because she "prosecuted this action in good faith and as expeditiously as possible." But it is well established in this Circuit that a prevailing party is presumptively entitled to an award of costs, that the loser's good faith alone does not overcome that presumption (see, e.g, Coyne-Delany Co. v. Capital Development Bd., 717 F.2d 385, 390 (7th Cir. 1983)) and that some additional showing such as the losing party's inability to bear such costs as a financial matter is needed (see, e.g., Badillo v. Central Steel & Wire Co., 717 F.2d 1160, 1165 (7th Cir. 1983)). There is also an exception to the award of costs where the prevailing party has engaged in "misconduct...worthy of a penalty"--a type of exercise of the judicial supervisory function (see, e.g., Congregation of the Passion v. Touche, Ross & Co., 854 F.2d 219, 222 (7th Cir. 1988))--but the good faith prosecution of an action by the losing party does not as such disentitle the winner to reimbursement for its taxable costs.

 Jansen also suggests in her list of objections that the pendency of an appeal (on September 6 she filed a notice of appeal from the underlying adverse judgment) renders Packaging's current motion premature. There is no authority for such an assertion.

 Accordingly this opinion will turn to the individual components of the award sought by Packaging. For convenience the several items will be dealt with in the same sequence as has been set out in Packaging's motion.

 Deposition Expenses

 Packaging first seeks $ 3,710.55 in court reporting fees incurred in taking five depositions (about 60% of that amount relates to the deposition of Jansen herself). Jansen objects that the four depositions other than her own (involving three doctors and Jansen's ex-husband) were not "necessarily obtained for use in the case" (28 U.S.C. ยง 1920(2) *fn2" and GR 45(B)).

 For that purpose the appropriate perspective looks to the prevailing party's reasonable evaluation of the now-disputed items at the time that the depositions were taken ( Hudson v. Nabisco Brands, Inc., 758 F.2d 1237, 1243 (7th Cir. 1985)). Because Jansen had then placed her emotional health at issue by advancing a claim of intentional infliction of emotional distress and by asserting such intangible harms as an element of damages, those issues were certainly relevant (see this Court's earlier opinions, 158 F.R.D. 409 (N.D. Ill. 1994) and a January 6, 1995 slip opinion, as to one facet of the matter). Accordingly the depositions of the three doctors (including the psychiatrist deposed by Packaging as the potential source of an expert opinion) meet the "reasonably necessary" test. That cannot however be said as to the deposition of Jansen's ex-husband Peter Jansen, from whom she was divorced over ten years ago-- Packaging's reply on that score is not persuasive. Thus court reporting fees are awardable in the lesser sum of $ 3,551.29.

 Packaging also asks for $ 2,333.55 "for obtaining copies of the transcripts" of an entire series of additional depositions. Although Jansen's objection to certain of those depositions themselves as "unnecessary and not material to the determination of this matter" is unpersuasive in light of the previously-announced standard, this Court perceives another problem (or at least a question) as to such items. Packaging's reference to "copies" of such transcripts is unclear. Taxable costs do extend to the original transcripts, but copies of those transcripts are typically made for the convenience of the parties and not as a necessity (see, e.g., Studiengesellschaft Kohle mb H v. Eastman Kodak Co., 713 F.2d 128, 133-34 (5th Cir. 1983) and cases cited there). Hence this Court will not shift such copying expenses to Jansen as "costs" under Section 1920. Accordingly further input is required from Packaging before this component of its request can be ultimately ruled upon.

 Witness and Subpoena Fees

 Packaging requests $ 828 in fees for the service of subpoenas (both subpoenas duces tecum and subpoenas for depositions) and $ 327.50 as witness fees for the depositions of Jansen's two attending physicians (in the latter respect, see Section 1920(3)). Jansen objects that the $ 420 that Packaging expended on subpoenas duces tecum really represented a needless outlay because the same request could have beer made by certified mail rather than through the use of process servers.

 Although Packaging is correct in referring to the personal-service provisions of Rule 45, it remains true that the ordinary practice where no opposition or resistance to a subpoena duces tecum is expected is to handle such matters on an informal basis until it becomes clear that the formality of personal service is required. From this Court's observations, this action has unfortunately been marked by bad blood (regrettably extending even to counsel for the litigants) from the outset. Whether or not that entered into the handling of this facet of the case, no good reason really appears for Packaging's pursuit of documents in the way that it did. Additionally, the ruling previously made in this opinion as to disallowing any award for the transcript of the deposition ...


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