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Cleary v. Philip Morris Inc.

October 14, 2010

BRIAN CLEARY, ET AL., PLAINTIFFS,
v.
PHILIP MORRIS INC., ET AL., DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Brian Cleary and two other plaintiffs, acting on behalf of a putative class, sued several tobacco manufacturers and related entities in state court on claims arising from their allegedly deceptive marketing of cigarettes. One of the defendants removed the case to this Court. On June 22, 2010, the Court entered summary judgment in favor of the defendants.

Three of the defendants, The Tobacco Institute (TI), Lorillard Tobacco Co. (Lorillard), and British American Tobacco Co., Ltd. (BATCo), have petitioned for an award of costs. Plaintiffs have objected to certain aspects of defendants' petitions. For the reasons stated below, the Court grants the defendants' petitions in part.

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 asks first whether the requested costs are recoverable and second 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 district court may not tax an expense as a cost unless the specific expense is authorized by statute. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42 (1987); Republic Tobacco Co. v. N. Atl. Trading Co., 481 F.3d 442, 447 (7th Cir. 2007).

1. TI's Bill of Costs

Plaintiffs object to TI's request for reimbursement of the costs of computerized research (Lexis/Westlaw) in the amount of $547.67. TI relies on Little v. Mitsubishi Motors N. Am., Inc., 514 F.3d 699 (7th Cir. 2008), in which the court affirmed, without discussion, the district court's award of costs for computerized legal research. When awarding the computerized research costs, the district court in Little, citing Burda v. M. Ecker Co., 2 F.3d 769, 778 (7th Cir. 1993), stated that "the Seventh Circuit has held that 'computerized legal research ... [is] properly recoverable by a prevailing party' under § 1920." Little v. Mitsubishi Motors N. Am., Inc., No. 04-1034, 2007 WL 1232097, at *4 (C.D. Ill. Apr. 26, 2007).

Burda -- the case on which the district court relied in Little -- was a sanctions decision, not a ruling about recoverable costs. And in affirming the district court's decision in Little, the court seems to have bypassed the "significant Seventh Circuit authority providing that computerized legal research costs are only recoverable as part of an attorney fee award, rather than as costs of suit." Thomas v. City of Peoria, No. 06-cv-1018, 2009 WL 4591084, at *2 (C.D. Ill. Dec. 3, 2009) (citing Tchemkou v. Mukasey, 517 F.3d 506, 512-13 (7th Cir. 2008); Haroco, Inc. v. Am. Nat. Bank and Trust Co. of Chicago, 38 F.3d 1429, 1440-41 (7th Cir. 1994); McIlveen v. Stone Container Corp., 910 F.2d 1581, 1584 (7th Cir. 1990)); see also, Montgomery v. Aetna Plywood, Inc., 231 F.3d 399 (7th Cir. 2000).

Conceptually, the conduct of computerized legal research (as opposed to manual research) ordinarily corresponds to a reduction in the amount of attorney time needed to do the research. Haroco, 38 F.3d at 1441. Therefore, there is "no difference between a situation where an attorney researches manually and bills only the time spent and a situation where the attorney does the research on a computer and bills for both the time and the computer fee." Id. In both situations, the costs amount to attorney's fees, and they are not recoverable as costs under section 1920. Id.; see also, McIlveen v. Stone Container Corp., 910 F.2d 1581, 1584 (7th Cir. 1990).

Furthermore, absent express statutory authority, a court may tax as costs only those expenses specifically enumerated under 28 U.S.C. § 1920. See Crawford Fitting Co.,482 U.S. at 441-42. Because the costs of computerized research costs are not included in section 1920, the Court reduces the amount TI claims by $547.67.

2. Lorillard's Bill of Costs

a. Stenographic Transcripts and Video-Recorded Depositions

Plaintiffs object to Lorillard's request for reimbursement of $1,650.55 paid for the paper transcript and video recordings of the two depositions of Cleary and the deposition of plaintiff Rita Burke. Plaintiffs argue that because Lorillard has not shown that the subject of the transcript was different from that of the video, the Court should not award costs for both. Plaintiffs rely on Robinson v. Burlington Northern R. Co., 963 F. Supp. 691 (N.D. Ill. 1997). In Robinson, the court relied on Barber v. Ruth, 7 F.3d 636, 645 (7th Cir. 1993), in concluding that a party seeking costs in this situation must show that the subject of the transcribed deposition was different from that of the videotaped one. Robinson, 963 F. Supp. at 693. Recently, however, the Seventh Circuit explained that prior precedents, including Barber, were based on the pre-1993 version of Rule 30, and that "the rule-makers have removed the provision that we previously interpreted to bar an ...


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