United States District Court, S.D. Illinois
SUZANNE HALLIHAN and MICHAEL HALLIHAN, on their own behalf and on behalf of all others similarly situated, Plaintiffs,
PROGRESSIVE DIRECT INSURANCE COMPANY, Defendant.
MEMORANDUM AND ORDER
J. ROSENSTENGEL United States District Judge
September 6, 2016, the Court granted Defendant's Motion
to Dismiss for Failure to State a Claim and dismissed this
action with prejudice. (Doc. 44.)
Rule of Civil Procedure 54(d) states: “[u]nless a
federal statute, these rules, or a court order provides
otherwise, costs-other than attorney's fees-should be
allowed to the prevailing party.” Fed.R.Civ.P. 54. When
the Court entered the Order dismissing the claims with
prejudice, Defendant became the prevailing party, and nothing
in the Order limited Defendant's ability to seek costs.
“The presumption in favor of awarding costs to the
prevailing party is difficult to overcome, and the district
court's discretion is narrowly confined-the court must
award costs unless it states good reasons for denying
them.” Weeks v. Samsung Heavy Indus. Co., 126
F.3d 926, 945 (7th Cir. 1997).
filed a Bill of Costs on September 12, 2016, seeking to
recover two categories of costs: (1) “[f]ees of the
Clerk, ” and (2) “[f]ees for printed or
electronically recorded transcripts necessarily obtained for
use in the case.” (Doc. 46, at p. 1.) The total amount
Defendant seeks is $7, 396.21.
filed objections to the Bill of Costs on September 27,
2016. Plaintiffs assert that Defendant
improperly seeks approximately $1, 400.00 in “Realtime
Services” and “Rough Draft” fees from the
depositions of Michael Hallihan and Suzanne Hallihan. (Doc.
48, at p. 2.) These assertions are unfounded. Defendant
specifically included a separate itemized list expressly
excluding the cost for live draft and rough draft fees. (Doc.
46-1.) For example, the invoiced amount to Defendant by the
vendor was $1, 600.25, whereas the amount listed in the
itemized Bill of Costs to Plaintiffs was only $1, 073.75.
That number is achieved by deducting the alleged offending
“Realtime Services” from the vendor's
invoice. Compare (Doc. 46-1) with (Doc.
also assert that additional items listed on the Bill of Costs
are vague and do not facially fall into the category of 28
U.S.C. § 1920. The Court agrees that the following items
are vague and do not facially appear to fall into the items
authorized under the statute: (1) Litigation Package; (2)
Exhibits Scanned-Searchable OCR; (3) Video-Media and Cloud
Services; (4) Video-Digitizing & Transcript
Synchronization; and (5) Media. (Docs. 46-2; 46-3; 46-4;
46-5; 46-6; 46-7.) As Defendant did not respond to the
objections or provide any further explanation for these
invoiced items, it is impossible for the Court to ascertain
whether they fall within the necessary costs incurred for the
litigation or whether they were incurred as a matter of
convenience or personal preference for the attorneys.
Accordingly, the Court sustains Plaintiffs' objections to
the five listed items.
Plaintiffs contend that Defendant seeks to improperly
“double recover” for both the preparation of a
video deposition recording and a written transcript.
Plaintiff point to the 2008 amendment to 28 USC § 1920,
which changed the language in subsection (2) from “of
the court reporter for all or any part of the stenographic
transcript” to “for printed or electronically
recorded transcripts.” Id. Plaintiffs assert
that the addition of the disjunctive “or” was put
in place to specifically exclude a party from recovery for
video transcripts and stenographic transcripts. (Doc. 48 at
to the October 2008 amendment, courts interpreted the
language “that fee of the court reporter for all or any
part of the stenographic transcripts [are recoverable as
costs]” in conjunction with Federal Rule of Civil
Procedure 30(b) to specifically include recovery for the
costs of video depositions. See Commercial Credit
Equipment Corp. v. Stamps, 920 F.2d 1361, 1368 (7th Cir.
1990); see also Tilton v. Capital Cities/ABC, Inc.,
115 F.3d 1471, 1477 (10th Cir. 1997). A minority of courts
strictly construed the statute and held that the costs for
video depositions could not be recovered. Mota v. Univ.
of Texas Houston Health Sci. Ctr., 261 F.3d 512, 529
(5th Cir. 2001) (“We have observed that 28 U.S.C.
§ 1920(2) only allows for the recovery of fees of the
court reporter for all or any part of the stenographic
transcript necessarily obtained for use in the case. There is
no provision for videotapes of depositions.”) (internal
quotations omitted). In the face of this split, the statute
was amended in 2008 to expressly authorize recovery for the
cost of video depositions.
Seventh Circuit allowed parties, prior to the 2008 amendment,
to recover the costs of video and stenographic transcripts
when the parties demonstrated that they were reasonably
necessary costs. Little v. Mitsubishi Motors N. Am.,
Inc., 514 F.3d 699 (7th Cir. 2008). While the
Little decision was issued prior to the October 2008
amendment to subsection 1920(2), the Seventh Circuit has
never overturned the holding of that case. Plaintiffs'
contention that the change in the statute demonstrates that
the Seventh Circuit should revert back to the decision in
Commercial Credit is misplaced. See Commercial
Credit Equip. Corp. v. Stamps, 920 F.2d 1361, 1363 (7th
Cir. 1990). Commercial Credit and its progeny were
based in part on the express language of Federal Rule of
Civil Procedure 30(b)(4), requiring each party to bear its
own expenses for transcript preparation. Id. The
language requiring each party to bear its own transcription
costs was removed in 1993. Little v. Mitsubishi Motors N.
Am., Inc., 514 F.3d 699, 702 (7th Cir. 2008) (“The
relevant provision, originally found in Rule 30(b)(4), was
moved to Rule 30(b)(2)-(3) by the 1993 amendments…).
interpretation of the “or” in subsection (2) does
not take into account the history behind the 2008 amendment.
Based on the strong presumption presented by Rule 54 and the
Seventh Circuit reasoning in Little, this Court
finds that a prevailing party may recover for the costs of
stenographic transcripts and video transcriptions but only to
the extent that they can establish both were reasonably
necessary for the preparation of the case. Druckzentrum
Harry Jung GmbH & Co. KG v. Motorola, Inc., No.
09-CV-7231, 2013 WL 147014, at *3 (N.D. Ill. Jan. 11, 2013);
see also Allstate Ins. Co. v. Plambeck, 66 F.Supp.3d
782 (N.D. Tex. 2014) (providing a detailed analysis as to why
recovery of both printed transcripts and video recording
depositions is authorized by the amended statute); but
see Cowden v. BNSF Ry. Co., 991 F.Supp.2d 1084, 1090
(E.D. Mo. 2014) (denying recovery for both based on the word
Defendant has only offered an itemized invoice in support of
its costs and has not responded to Plaintiffs'
objections. As such, the Court finds Defendant cannot recover
for both items. Indeed, it is not facially clear why a video
deposition was necessary in a case involving the
interpretation of an insurance policy. The Court will not
engage in speculation to aid a party in recovery costs, thus
Defendant may only recovery the costs of the written
Clerk of the Court is DIRECTED to tax Plaintiffs $2, 937.90
as costs under Rule 54(d).