check number 16405 show that the Plaintiffs paid the Defendant $ 1,199.00 as their share of Mr. O'Connell's deposition expenses. As such, the court finds that these expenses were incurred to avoid travel costs of attorneys. Since these costs would have been avoided if the attorneys would have traveled to the witnesses, these costs are not reasonable and necessary witness fees under § 1920(3). Cf 28 U.S.C. § 1920 (travel costs of attorneys are not recoverable).
Therefore, the court awards $ 9,693.96 minus Mr. Williams' fees of $ 1,149.47, Mr. Heuser's fees of $ 581.62, and Mr. O'Connell's fees of $ 1,199.00, which totals $ 6,763.87 as reasonable and necessary as fees for witnesses under § 1920(3).
5. Fees for Exemplification and Copies of Papers
The Plaintiffs seek $ 55,882.37 in exemplification and copies. Of that amount, $ 32,559.90 is for in-house photocopies; $ 23,226.97 is for copies at various copy centers; and $ 95.90 is for certified photocopies from the court clerk. The Defendant agrees that the court should award $ 95.90 for copies from the clerk. As for the remaining portion of the cost, the Defendant argues that it is not recoverable because the photocopies were not used at trial.
Section 1920(4) allows the prevailing party to recover costs incurred in copying discovery documents, pleadings and exhibits submitted to the court, as well exhibits used at trial. See Finchum, 57 F.3d at 534; M.T. Bonk Co. v. Milton Bradley Co., 945 F.2d 1404, 1410 (7th Cir. 1991). The Seventh Circuit has held that "'the underlying documents need not be introduced at trial in order for the cost of copying them to be recoverable.'" Truck Components Inc., 1996 U.S. Dist. LEXIS 9946, 1996 WL 402520, at *7 (alteration in original) (citing Sangamo Constr. Co., 657 F.2d at 867).
The prevailing party need only provide "the best breakdown obtainable from retained records." Northbrook Excess and Surplus Ins. Co. v. Procter & Gamble Co., 924 F.2d 633, 643 (7th Cir. 1991). If the "'documentation establishes that these were copies made for this case for its attorneys and billed in the normal course with the documents coming in[,]'" it is sufficient. Id. ("The court realized that a copying bill of more than $ 50,000 was large, but found it was not excessive 'in the context of a six-year paper war.'")
Here, the Plaintiffs, through their attorney, have verified that the fees for copying includes only those photocopies that were necessary for the case. Cf M.T. Bonk Co., 945 F.2d at 1410 (The court held that it was not an abuse of discretion to award copying costs based on a party's verified calculation.). In addition, the Plaintiffs in-house photocopying costs were computer generated from a copy counter on the photocopier which automatically bills clients based client codes. As such, it is reasonable to infer that the copies were billed in the normal course of litigation. Cf Northbrook Excess and Surplus Ins. Co., 924 F.2d at 643. Since costs are presumptively awarded to the prevailing party, see FASA Corp., 108 F.3d at 144, it is reasonable to presume that much of the copies at various copy centers were of discovery documents produced by the Defendant.
Since the Defendant fails to offer any evidence to show that the copies were unreasonable or unnecessary, the awards $ 55,882.37 as fees for exemplification and copies of paper.
6. Fees for Defendant's Experts
The Plaintiffs seek $ 28,290.00 for fees incurred in deposing the Defendant's experts pursuant to Federal Rule of Civil Procedure 26(b)(4)(C) which requires "the party seeking discovery [to] pay the expert a reasonable fee for time spent in responding to discovery" requests. The Plaintiffs admit that such fees are not allowable under § 1920. Nevertheless, the Plaintiffs move the court to exercise its discretion to award such fees.
It is well established, however, that "the prevailing party can recover only the statutory amounts prescribed in § 1821 [for expert witnesses] and not additional expert witness fees." Sangamo Constr. Co., 657 F.2d at 865. In enacting §§ 1920 and 1821, Congress made no special provisions for opposing party's expert witnesses. Cf id. ("But Congress did specify that costs included the expense of court-appointed expert witnesses.") (citing 28 U.S.C. § 1920(6)). Despite Federal Rule of Civil Procedure 26(b)(4)(C), Congress did not provide for the prevailing party to recovery any costs incurred pursuant to that rule. Id.; see also Crawford Fitting Co., 482 U.S. at 443 ("'Congress has dealt with the subject comprehensively and has made no exception of the fees of expert witnesses.'") (citations omitted).
As such, the court concludes from congressional silence, that such costs are not recoverable. Cf Sangamo Constr. Co., 657 F.2d at 865; see also O'Toole v. Kalmar, 1990 U.S. Dist. LEXIS 12516, No. 85 C 7380, 1990 WL 141431, at *4-5 (N.D. Ill. Sept. 21, 1990) (The court held that federal courts addressing whether a party may recover costs expended in deposing an expert witness pursuant Federal Rule of Civil Procedure 26(b)(4)(C) was bound by the limitations set forth in §§ 1920 and 1821).
The court denies the award of $ 28,290.00 for fees incurred in deposing the Defendant's experts.
7. Fees for long-distance calls
The Plaintiffs seek $ 878.73 for long-distance calls. Although the Plaintiffs admit that § 1920 does not allow such costs, the Plaintiffs argue that "exceptional circumstances" warrant such costs. However, it is well established that the court cannot award costs without specific statutory authority. See Barber, 7 F.3d at 644 (citing Crawford Fitting Co., 482 U.S. at 440-41); see also McClain v. Owens-Corning Fiberglas Corp., 1996 U.S. Dist. LEXIS 16579, No. 89 C 6226, 1996 WL 650524, at *5 (N.D. Ill. Nov. 7, 1996) ("No court in the Seventh Circuit has recognized the 'exceptional circumstances' exception.").
Accordingly, the court denies the award of $ 878.73 for fees for long-distance calls. See Baker v. Netherton, 206 B.R. 510, 515 (N.D. Ill. 1997) ("the Court finds that the long distance telephone [charges] . . . are not recoverable costs under § 1920.")
For the foregoing reasons, the court awards $ 122,516.94 to the Plaintiffs as recoverable costs pursuant to 28 U.S.C. § 1920 and Federal Rule of Civil Procedure 54(d). The specific costs awarded are as follows:
Fees of the Clerk $ 60.00
Fees for service of summons and subpoenas $ 849.25
Fees of the court reporter $ 58,961.45
Fees for witnesses $ 6,763.87
Fees for exemplification and copies of papers $ 55,882.37
Fees for Defendant's experts $ 0.00
Fees for long-distance calls $ 0.00
Total= $ 122,516.94
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court