UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JACK BEAM and RENEE BEAM, )

)

Plaintiffs, ) 

)

v. ) No. 07 C 1227

)

MATTHEW S. PETERSEN, FEDERAL ) Judge Rebecca R. Pallmeyer

ELECTION COMMISSION CHAIRMAN, )

) 

Defendant. )

MEMORANDUM OPINION AND ORDER

In this lawsuit, Plaintiffs Jack and Renee Beam (“Plaintiffs”) claimed that Defendant, the

Federal Election Commission (“FEC,” “Commission,” or “Defendant”), improperly obtained their

private financial records from the Department of Justice (“DOJ”) without following certain

requirements outlined in the Right to Financial Privacy Act of 1978 (“RFPA”), 12 U.S.C. § 3401 et

seq. The court denied FEC’s motion for summary judgment but, after a two-day bench trial,

concluded that Plaintiffs had not proven any violation. See Beam v. Peterson, No. 07 C 1227, 2010

WL 3894225 (N.D. Ill. Sept. 30, 2010). Defendant now seeks an award of costs in the amount of

$8,300.64, including court reporter and transcript fees, witness fees, and certain other charges. 

(Bill of Costs at 1.) Plaintiffs object to any award, arguing that Defendant’s request is barred by

“unclean hands”—that is, that Defendant has engaged in what the Seventh Circuit generally refers

to as “misconduct.” (Pl.’s Objections to Def.’s Bill of Costs (hereinafter “Pl.’s Objs.”), at 2.) 

Alternatively, Plaintiffs object to particular portions of Defendant’s bill of costs. (Pl.’s Objs. at 4-8.) 

For the reasons explained below, these objections are overruled, and the court awards costs in the

amount requested. 

LEGAL STANDARDS

Rule 54(d)(1) provides that “costs other than attorneys’ fees shall be allowed as of course

to the prevailing party unless the court otherwise directs . . . ” Cefalu v. Vill. of Elk Grove, 211 F.3d

Case: 1:07-cv-01227 Document #: 218 Filed: 09/22/11 Page 1 of 9 PageID #:2518
416, 427 (7th Cir. 2000). There is a presumption in favor of the award of costs, and in order to

overcome that presumption, “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) (citing M.T. Bonk Co. v. Milton Bradley Co., 945 F.2d 1404, 1409 (7th Cir. 1991)). Thus, Rule

54(d)(1) establishes “a presumption that the losing party will pay costs but grants the court

discretion to direct otherwise.” Rivera v. City of Chicago, 469 F.3d 631, 634 (7th Cir. 2006). The

Seventh Circuit recognizes “only two situations in which the denial of costs might be warranted: the

first involves misconduct of the party seeking costs, and the second involves a pragmatic exercise

of discretion to deny or reduce a costs order if the losing party is indigent.” Mother & Father v.

Cassidy, 338 F.3d 704, 708 (7th Cir. 2003). 

Although the prevailing party is, thus, presumptively entitled to costs, not all of the costs of

litigation are recoverable. “[A] district court may not tax costs under Rule 54(d) unless a federal

statute authorizes an award of those costs.” Republic Tobacco Co. v. N. Atl. Trading Co., 481 F.3d

442, 447 (7th Cir. 2007). The list of recoverable costs pursuant to 28 U.S.C. § 1920 includes: (1)

fees of the clerk and marshal, (2) fees for transcripts, (3) witness and printing fees and expenses,

(4) fees for copies or papers necessarily obtained for use in the case, (5) docket fees, and (6)

compensation for court-appointed experts and interpreters. 28 U.S.C. § 1920. Taxing costs

against the non-prevailing party requires two inquiries: (1) whether the cost is recoverable, and (2)

whether the amount assessed is reasonable. See Majeske v. City of Chicago, 218 F.3d 816, 824

(7th Cir. 2000). 

ANALYSIS 

As noted, Plaintiffs have objected to any award of costs on the ground that Defendant has

“unclean hands.” If any costs are recoverable, Plaintiffs contend, the amounts requested are

excessive. The court addresses these objections in turn. 

Alleged Litigation Misconduct

2

Case: 1:07-cv-01227 Document #: 218 Filed: 09/22/11 Page 2 of 9 PageID #:2519
Plaintiffs have argued that Defendant is barred from recovering any costs under Rule

54(d)(1) based on the “unclean hands” doctrine. (Pl.’s Objs. at 2.) In support of this argument,

Plaintiffs first point to the Commission’s pre-litigation vote to find “reason to believe” (“RTB”) that

Plaintiffs might have violated the Federal Elections Campaign Act; that voted resulted in an

investigation of Plaintiffs’ conduct that, ultimately, failed to bear fruit. (Id. at 3-4.) Plaintiffs next

detail various incidents that occurred during the course of litigation. (Id. at 4-5.) Specifically,

Plaintiffs contend that defense counsel regularly objected to discovery requests without a legitimate

basis. According to Plaintiffs, this “uncooperative” posture was a “strategy” that resulted in

Plaintiffs’ incurring substantial expense. (Id. at 5.) Plaintiffs note that they were required to move

to compel discovery, and in various rulings, the court directed Defendant to comply with those

discovery requests. (Id. at 4.) Finally, Plaintiffs go to great lengths to detail the perceived strength

of their testimony and evidence, ultimately arguing that, although the court ruled in favor of

Defendant on the merits, “Plaintiffs should not be penalized, again, with having to incur Defendant’s

taxable costs.” (Id. at 2-4.) 

The Seventh Circuit has held that, in order for misconduct of the prevailing party to require

that costs be denied, that misconduct must be found “worthy of a penalty” and involve “exceptional

circumstances.” Congregation of the Passion v. Touche, Ross & Co., 854 F.2d 219, 222 (7th Cir.

1988); Overbeek v. Heimbecker, 101 F.3d 1225, 1228 (7th Cir. 1996). Plaintiffs’ allegations

regarding Defendant’s behavior in this case do not approach this level. First, Plaintiffs’ arguments

tied to the Commission’s RTB finding, and subsequent investigation, are irrelevant to the taxing of

costs. These matters were the product of the FEC’s administrative process and occurred prior to

litigation. Although Plaintiffs may very well have been inconvenienced by this process, and found

it unfair, it does not support a finding of misconduct in the instant case. Indeed, Plaintiffs offer no

legal support for such an argument. 

Plaintiffs are correct that obstruction of discovery might, in some context, constitute the type

3

Case: 1:07-cv-01227 Document #: 218 Filed: 09/22/11 Page 3 of 9 PageID #:2520
of “misconduct” that could warrant a denial of costs. The magnitude of Defendant’s alleged

obstruction in this case, however, falls far short of “exceptional.” Discovery disputes are, by

definition, contentious. The disputes in this case were, from the court’s perspective, neither

remarkably nor obviously motivated by anything more unsavory than a reasonably aggressive

litigation posture. 

Plaintiffs’ final argument—essentially, that their case was sufficiently strong so as to merit

a denial of costs in toto–fails, as well. In Popeil Bros., Inc. v. Schick Electronics, Inc., the Seventh

Circuit specifically addressed the question of whether the good faith and credibility of the

nonprevailing party’s case can justify denial of costs. The answer is no: “If the awarding of costs

could be thwarted every time the unsuccessful party is a normal, average party and not a knave,

Rule 54(d) would have little substance remaining.” 516 F.2d 772, 776 (7th Cir. 1975). In other

words, “[m]ore than just a showing of good faith is necessary to immunize the losing party from

paying costs.” Muslin v. Frelinghuysen Livestock Managers, Inc., 777 F.2d 1230, 1236 (7th Cir.

1985). 

Plaintiffs’ objection to any award of costs in this case is overruled. 

Reasonableness of Claimed Costs 

Plaintiffs urge, in the alternative, that this court should disallow certain costs requested by

Defendant. (Pl.’s Objs. at 5.) In particular, Plaintiffs challenge Defendant’s claim of costs for travel

and lodging, for the videotaped deposition of an out-of-town deponent, and for assorted transcript

expenses.1

 Plaintiffs’ objections to these specific costs will be considered in turn. 

1 Plaintiffs also urge this court to disallow the internet and ATM fees claimed by two

witnesses, M. Kendall Day and Thomas Anderson, as such fees are not contemplated under 28

U.S.C. §§ 1920 or 1821. (Pl.’s Objs. at 6.) Although such fees do appear on the schedules of

expenses of Andersen and Day, Defendant has subtracted these fees in calculating the final bill of

costs. (Bill of Costs at 2, Bill of Costs Ex. B, at B-04, Bill of Costs Ex. C, at C-0004.) The court

need not address this objection further.

4

Case: 1:07-cv-01227 Document #: 218 Filed: 09/22/11 Page 4 of 9 PageID #:2521
1. Travel and Lodging Expenses 

Defendant’s bill of costs includes, as “fees for witnesses,” the lodging and per diem charges

for five traveling witnesses, as well as the attendance cost and mileage for one non-traveling

witness. The total of these fees is $3,585.89.2

 (Bill of Costs at 1.) The bill of costs also includes

the transportation costs for these five witnesses, under “other costs,” which are listed at $1,559.40.3

(Id.) Costs to reimburse witnesses for reasonable travel expenses are recoverable. See Majeske

v. City of Chicago, 218 F.3d 816, 825-26 (7th Cir. 2000) (“[C]ollectively, 28 U.S.C. §§ 1821 and

1920(3) authorize the award of costs to reimburse witnesses for their reasonable travel and lodging

expenses.”). Plaintiffs urge, however, that certain of Defendant’s claimed travel and lodging costs

are unreasonable. 

First, Plaintiffs object to the cost of three nights of hotel charges and three days’ per diem

cots for witnesses Andersen, Hearron, Olaya, and Shonkwiler. (Pl.’s Objs. at 5, 6.) These charges

are excessive, Plaintiffs contend, in light of the fact that the trial lasted just two days, Wednesday

and Thursday, August 25–26, 2010, and concluded on Thursday afternoon. (Id.) In fact, one

additional witness, Mr. Day, flew back to Washington after the trial ended on Thursday. (Id.) In

response, Defendant directs this court’s attention to the Final Pretrial Order, in which Plaintiffs

estimated that the trial would take “3 or 4 days to complete.” (Federal Election Commission’s Rep.

in Supp. of its Bill of Costs (hereinafter “Def.’s Rep.”), at 8; Final Pretrial Order, Ex. 1 to Def.’s Rep.,

at 4.) Defendant contends it relied on this projection in making hotel reservations for the majority

2 Defendant’s requested fee for each witness is as follows: Thomas Andersen (4 days,

$857.80), M. Kendall Day (3 days, $583.70), Roger Hearron (4 days, $857.80), Phillip Olaya (4

days, $654.70), Mark Shonkwiler (3 days, $583.70), and Audra Wassom Bayes ($48.19, including

$40 attendance cost and $8.19 mileage cost). (Bill of Costs at 2.) 

3 Defendant’s claimed costs for travel are as follows: Andersen ($308.90), Day

($362.25), Hearron ($383.45), Olaya ($239.90), and Shonkwiler ($264.90). (Summers Decl.,

Attach. 1 to Bill of Costs, at 2.)

5

Case: 1:07-cv-01227 Document #: 218 Filed: 09/22/11 Page 5 of 9 PageID #:2522
of witnesses for 3 nights.4

 (Def.’s Rep. at 8.) Plaintiffs have cited only Majeske v. City of Chicago

for the general proposition that “assessed costs must be reasonable.” 218 F.3d 816, 824 (7th Cir.

2000). This court finds Defendant’s prudent advance planning entirely reasonable, and concludes

that Defendant is entitled to recovery of the per diem charges it incurred, as well. 

Plaintiffs broadly dispute the costs requested for ground transportation, claiming they are

excessive and unsupported by documentation. (Pl.’s Objs. at 6.) Plaintiffs’ particular dispute,

however, involves the claimed taxi fare of $50 for Mr. Hearron’s commute from Chicago O’Hare

International Airport (“O’Hare”) to The Palmer House Hilton, and $47.55 for his return. (Id.) 

Plaintiffs claim that another witness, Mr. Olaya, repeatedly managed to travel to his hotel from

O’Hare for an average of $27.10.5

 (Id.) Defendants make a number of counterarguments, including

pointing out that the $50 trip in from O’Hare involved transporting another witness, Thomas

Anderson, as well. (Def.’s Rep. at 8.) Although the court is reluctant to engage in substantial

independent research, a $50 charge appears completely reasonable. See Taxi Fare Finder

Chicago, http://www.taxifarefinder.com/main.php?city=Chicago (last visited September 21, 2011)

(estimated taxi fare from O’Hare to Palmer House: $46.95.) This objection is overruled. 

Plaintiffs also urge the court to reject Defendant’s overall claims for transportation costs. 

They note with suspicion that some witnesses claim an expense of $383.45 (Hearron) while others

claim a much lower amount, $239.90, for this travel (Olaya). (Pl.’s Objs. at 6.) In Plaintiffs’ view,

it is “impossible to calculate or explain the differences between these [transportation] costs.” (Id.) 

Plaintiffs’ difficulty is puzzling; Plaintiffs themselves note that Hearron incurred nearly $100 in taxi

4 Defendant also notes that the trial ended at 3:46 p.m. on August 26—too late to

avoid incurring hotel charges for the third night. (Def.’s Rep. at 8.) The court presumes that, even

if Defendant could have canceled the hotel reservations, it would have been difficult and

undoubtedly costly to make changes in the flight arrangements. 

5 This court suspects that Plaintiffs misread Mr. Olaya’s claimed daily amounts for his

“hotel tax”—which are all exactly $27.10—as his “hotel taxi.” Bill of Costs Ex. E, at E-03. 

Otherwise, the source of Plaintiffs’ very precise claim regarding “average” taxi fare is unclear. 

6

Case: 1:07-cv-01227 Document #: 218 Filed: 09/22/11 Page 6 of 9 PageID #:2523
fares, while Olaya did not; the cab fare difference, along with Hearron’s baggage check fees ($23

each way) adequately explain the discrepancy. ( Bill of Costs Ex. D, at D-04; Bill of Costs Ex. E,

at E-03.) Any objection based on the difference between overall transportation charges is

overruled. 

2. Deposition Expenses for Audra Wassom Bayes

Defendant seeks recovery for the cost of a videotaped deposition of Wassom Bayes, an

FEC staff attorney ($325). Plaintiffs object to this charge, as well, arguing that there was no reason

for this deposition to be videotaped. (Pl.’s Objs. at 6.) 

The court will award costs for a deposition transcript so long as the deposition appears

reasonably necessary in light of the facts known at the time of the deposition. Little v. Mitsubishi

Motors N. Am., Inc., 514 F.3d 699, 702 (7th Cir. 2008). The Seventh Circuit has approved an

award for a videotape recording, as well, under appropriate circumstances. Id. at 702. In its reply,

Defendant explains that Bayes, a new mother, was unable to travel to Chicago for the trial, requiring

that her deposition be videotaped for use in lieu of live testimony. (Def.’s Rep. at 10.) See Z Trim

Holdings, Inc. v. Fiberstar, Inc., No. 07-cv-161-bbc, 2008 WL 3843507, at *1 (W.D. Wis. Aug. 12,

2008) (approving award for videotape where it was reasonable “for defendant to ‘play it safe’ by

videotaping depositions . . . in circumstances in which there is even a slight chance that the witness

may not be present at trial.”). Ms. Bayes was an extremely important witness, and the submission

of the videotape, in addition to a transcript of the testimony, enabled the court to better evaluate this

witness’s demeanor and credibility. The costs of the transcript and videotape are approved. 

3. Fees for Certain Pretrial Transcripts

Plaintiffs object to Defendant’s requests for the cost of transcripts from hearings that took

place before this court in January and February 2009. (Pl.’s Objs. at 7.) Plaintiff contends that

these transcripts were unnecessary and served no purpose other than to add extra items to the bill

of costs. (Id.) The transcripts, respectively, cost Defendant $25.20 and $82.45. (Bill of Costs,

7

Case: 1:07-cv-01227 Document #: 218 Filed: 09/22/11 Page 7 of 9 PageID #:2524
Summers Decl. at 5.) 

“[T]he cost of transcripts for pretrial proceedings are taxable as costs under Rule 54(d).” 

Carlson v. Bukovic, No. 07 C 06, 2009 WL 2448603, at *3 *(N.D. Ill. Aug. 7, 2009) (quoting Helzing

v. Loyola Univ. of Chicago, No. 02 C 9408, 2004 WL 2608287, at *3 (N.D. Ill. Nov. 16, 2004); see

also SK Hand Tool Corp. v. Dresser Indus., Inc., 852 F.2d 936, 944 n.9 (7th Cir. 1988). In a

declaration in support of the bill of costs, FEC attorney Harry Summers explains that each of these

pretrial transcripts was obtained for a specific purpose. (Summers Decl. at 5.) Summers explained

that Defendant obtained an expedited copy of the transcript of the January motion and status

hearing because it “confirmed and provided detail about the Court’s oral instructions to the

Commission concerning discovery tasks that the agency was obliged to undertake promptly . . . and

also included the Court’s guidance regarding the proper scope of discovery.” (Id.) The transcript

of the February motion hearing, similarly, was “necessary to allow the Commission to ensure that

[P]laintiffs kept within the limits the Court set for then-upcoming depositions.” (Id.) 

Plaintiff has not effectively challenged this explanation, and the court has no reason to doubt

Summers. Plaintiffs’ objection to the costs for obtaining these transcripts is overruled, as well. 

8

Case: 1:07-cv-01227 Document #: 218 Filed: 09/22/11 Page 8 of 9 PageID #:2525
CONCLUSION 

Costs are awarded in the total requested amount of $8,300.64. 

ENTER:

Dated: September 22, 2011 _________________________________________

REBECCA R. PALLMEYER

United States District Judge

9

Case: 1:07-cv-01227 Document #: 218 Filed: 09/22/11 Page 9 of 9 PageID #:2526