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Bogan v. City of Chicago

June 28, 2010

SHARON BOGAN, PLAINTIFF,
v.
CITY OF CHICAGO, SHANNON JASICA, MATTHEW BREEN, AND WILLIAM LANGLE, DEFENDANTS.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge

MEMORANDUM OPINION AND ORDER

On March 9, 2010, the Court entered judgment in favor of the defendants, the City of Chicago and Chicago police officers Shannon Jasica, Matthew Breen and William Langle, and against plaintiff Sharon Bogan, based on a jury verdict. Defendants have petitioned for an award of costs in the amount of $2,312.55. Bogan objects to certain aspects of defendants' request and also asks the Court to deny costs entirely as a sanction for what Bogan characterizes as an unjustified request for costs. For the reasons stated below, the Court awards defendants costs in the amount of $736.60.

Discussion

A prevailing party is presumptively entitled to recover "[c]osts other than attorneys' fees... as of course," Fed. R. Civ. P. 54(d)(1), and "the losing party bears the burden of an affirmative showing that taxed costs are not appropriate." Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 864 (7th Cir. 2005). A court considering whether to award costs follows a two-part inquiry: whether the costs are recoverable, and whether the costs were reasonably necessary to the litigation. Majeske v. City of Chicago, 218 F.3d 816, 824 (7th Cir. 2000); Deimer v. Cincinnati Sub-Zero Products, Inc., 58 F.3d 341, 345 (7th Cir. 1995).

Recoverable costs include "(1) [f]ees of the clerk and marshal; (2) [f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) [f]ees and disbursements for printing and witnesses; (4) [f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (5) [d]ocket fees under section 1923 of this title; (6) [c]ompensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title." 28 U.S.C. § 1920. A court can deny costs entirely under exceptional circumstances. Rivera v. City of Chicago 469 F.3d 631, 635 (7th Cir. 2006); Overbeek v. Heimbercker, 101 F.3d 1225, 1228 (7th Cir. 1996); Congregation of the Passion, Holy Cross Province v. Touche, Ross & Co., 854 F.2d 219, 222 (7th Cir. 1988).

1. Appropriateness of Particular Costs Requested

a. Deposition Fees

Bogan objects to defendants' request for reimbursement of deposition fees on two grounds. First, Bogan contends that defendants have not shown why copies of Breen and Langle's videotaped depositions were reasonably necessary. Depositions may be taken by "audio, audiovisual, or stenographic means," Fed. R. Civ. P. 30(b)(3), and the cost of obtaining them is recoverable if they were reasonably necessary for use in the case. See 28 U.S.C. § 1920. "[T]he determination of necessity must be made in light of facts known at the time of the deposition." M. T. Bonk Co. v. Milton Bradley Co., 945 F.2d 1404, 1410 (7th Cir. 1991). A court may tax the costs of a transcript and a videotape of the same deposition only if both are necessary and reasonable. See Cherry v. Champion Int'l Corp., 186 F.3d 442, 448-49 (4th Cir. 1999); Tilton v. Capital Cities/ABC Inc., 115 F.3d 1471, 1478 (10th Cir. 1997); Top Tobacco, L.P. v. N. Atlantic Operating Co., No. 06 C 950, 2007 WL 1149220, at *7 (N.D. Ill. Apr. 17, 2007); Rogers v. City of Chicago, No. 00 C 2227, 2002 WL 423723, at *3 (N.D. Ill. Mar. 15, 2002). In this case, defendants were aware that Bogan had copies of the videos of the depositions of Breen and Langle. Defendants have sufficiently shown that they obtained copies of the recordings in preparation for Bogan's anticipated use of these materials at trial, as indicated on Bogan's corrected list of potential trial exhibits. Given these circumstances, it was reasonably necessary for defendants to obtain copies of the video depositions.

Bogan also argues that because the videotaped depositions of Breen and Langle and the deposition transcript of Jasica were "copies" rather than the originals, recovery is limited to the $.90 per-page rate for transcript copies established by the Judicial Conference of the United States. The Court disagrees. Local Rule 54.1(d), which says that costs awarded for deposition transcripts "shall not exceed the regular-copy rate as established by the Judicial Conference of the United States and in effect at that time," "allows for recovery of the full charge, so long as it does not exceed the highest maximum rate as established by the Judicial Conference." Fletcher v. Chicago Rail Link, LLC, No. 06 C 842, 2007 WL 4557816, at *1 (N.D. Ill. Dec. 20, 2007). Because the $2.95 per page rate requested for Breen and Langle's videotaped depositions and the $2.60 per page rate requested for Jasica's deposition transcript fall below the $3.65 maximum per-page rate established by the Judicial Conference, the Court allows recovery of these costs in the amount of $616.60.

b. Shipping and Handling Costs

Bogan objects to the recovery of costs incurred with shipping and handling. Because these costs are considered "ordinary business expenses," they are not recoverable. See e.g., American Nat. Ins. Co. v. Citibank, F.S.B., 623 F. Supp. 2d 953, 956 (N.D. Ill. 2009) (deducting delivery and postage expenses from the prevailing party's videotaped deposition costs). The Court disallows the requested costs associated with the shipping and handling of Breen and Langle's video depositions and Jasica's deposition transcript and reduces defendants' requested costs by $46.50.

c. Daily Transcript of Trial

The law allows recovery for "fees for printed or electronically recorded transcripts necessarily obtained for use in the case," 28 U.S.C. § 1920, which includes trial transcripts and transcripts of other court proceedings. Majeske v. City of Chicago, 218 F.3d 816, 825 (7th Cir. 2000). The determination of necessity must be made based upon the facts known at the time the transcript was requested. Cengr v. Fusibond Piping Sys., Inc., 135 F.3d 445, 455 (7th Cir. 1998). A prevailing party cannot recover costs associated with a transcript requested for its own convenience, but the transcript "need not be absolutely indispensable" to the litigation. Barber v. Ruth, 7 F.3d 636, 645 (7th Cir. 1993).

Bogan contends, and the Court agrees, that obtaining a daily-rate transcript of the trial was not reasonably necessary. The court in Majeske found that a prevailing party's use of daily transcripts was reasonably necessary because it used the transcript "to record the court's oral rulings before and during trial, to prepare pre-trial and trial memoranda, to prepare direct examination questions for its witnesses, to anticipate cross-examination questions, to cross-examine plaintiffs' witnesses, to draft its post-trial briefs, and to respond to plaintiffs' post trial motions." ...


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