The opinion of the court was delivered by: LEVIN
On January 5, 1998, this court granted summary judgment in favor of Defendant Alan Fishman. Defendant subsequently filed a bill of costs, pursuant to 28 U.S.C. § 1920 and Fed. R. Civ. P. 54(d), seeking a total of $ 8,548.27 in costs. Plaintiffs American Automotive Accessories, Incorporated and Emalfarb Investment Corporation filed timely objections to Defendant's requested costs. Having reviewed Plaintiffs' objections and Defendant's support for his costs, this court grants Defendant costs in the amount of $ 5,561.67.
Pursuant to Rule 54(d) of the Federal Rules of Civil Procedure, "costs other than attorney's fees shall be allowed as of course to the prevailing party unless the court otherwise directs." The Supreme Court has determined that 28 U.S.C. § 1920 defines the term "costs" as it is used in Rule 54(d). See Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 945 (7th Cir. 1997) (citing Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441, 96 L. Ed. 2d 385, 107 S. Ct. 2494 (1987)).
Here, Plaintiffs object to three of Defendant's requests for costs: (1) $ 547.50 for two deposition transcripts, (2) $ 3,804.10 for copies, and (3) $ 235.92 for a telephone deposition bill. This court addresses each of Plaintiffs' objections in turn.
I. THE DEPOSITION TRANSCRIPTS.
Plaintiffs first object to the inclusion of $ 547.50 in Defendant's bill of costs for the deposition transcripts of Alan E. Fishman and Cynthia T. Favia. Plaintiffs argue that the invoices regarding these depositions demonstrate that the depositions were not taken in this case; instead, they were taken in a related but separate state court case involving the same alleged fraudulent check-cashing scheme at issue in this case, Favia v. American Automotive Associates, Inc., Cook County Circuit Court, No. 95 CH 461. Plaintiffs state that Defendant has presented no evidence that these transcripts were necessarily obtained for use in the case at bar.
Deposition costs (including transcripts) "necessarily obtained for use in the case" are authorized under § 1920(2).
"The phrase 'for use in the case' refers to materials actually prepared for use in presenting evidence to the court[.]" McIlveen v. Stone Container Corp., 910 F.2d 1581, 1584 (7th Cir. 1990) (quoting E.E.O.C. v. Kenosha Unified School Dist., 620 F.2d 1220, 1227-28 (7th Cir. 1980)).
This court finds that the subject Fishman and Favia depositions were not "necessarily" obtained for use in this case. Both the Fishman and Favia depositions occurred in a separate state court case and even before Plaintiffs filed this action against Defendant. Although Defendant maintains that the deposition transcripts (particularly Fishman's) were highly useful and necessary in this federal action,
the simple fact is that the depositions were not actually undertaken ab initio for use in presenting evidence to the court in this case.3
Accordingly, this court finds that the Fishman and Favia depositions were not necessarily obtained for use in this case as required by § 1920(2). Defendant's request for deposition transcript costs must thus be reduced by the amount of those depositions, $ 547.50.
Plaintiffs next object to Defendant's entire charge of fees for the exemplification and copying of papers, $ 3,804.10. Plaintiffs assert that Defendant has not met his burden of demonstrating that the copy costs were necessarily incurred in this action. In addition, Plaintiffs argue that Defendant's copy rate is excessive.
Plaintiff's first objection with respect to copy costs is that Defendant has not demonstrated that his copy costs were necessarily incurred in this action. Plaintiffs assert that Defendant has not designated what it copied, let alone whether the copies were necessary.
Although the prevailing party is "not required to submit a bill of costs so detailed as to make it impossible economically to recover photocopying costs," Northbrook Excess & Surplus Ins. Co. v. Procter & Gamble Co., 924 F.2d 633, 643 (7th Cir. 1991), where a court is unable to "determine whether the copies in question were reasonably necessary for use in the case, the claim for costs should be denied," NLFC, Inc. v. Devcom Mid-America, Inc., 916 F. Supp. 751, ...