IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KEITH ARGENBRIGHT )

)

V. ) 3-04-CV-1061-H

)

ZIX CORPORATION, ET AL )

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

On August 18, 2005, came on to be heard Plaintiff’s Motion to Modify Assessment of

Taxable Costs filed on June 30, 2005, and having considered the relevant pleadings and the

statements of counsel for the parties, the magistrate judge finds and recommends as follows:

On June 14, 2005, the District Court entered judgment in Defendants’ favor dismissing

Plaintiff’s claims with prejudice and awarding Defendants their costs. On June 27, 2005,

Defendants filed their bill of costs which itemized costs incurred that are taxable as costs under 28

U.S.C. § 1920 as well as $4,614.00 incurred by Defendants for expert fees charged by Karen K.

Suhre, an expert retained by them.

Although Plaintiff initially disputed the amounts sought for items within the purview of §

1920, at the outset of the hearing Plaintiff’s counsel informed the court that Plaintiff no longer

disputed the amounts claimed for these items. However, counsel resiterated Plaintiff’s opposition

to Ms. Suhre’s expert fee itemized in Defendants’ bill of costs.

In their response to Plaintiff’s motion to modify filed on July 20, 2005, Defendants

essentially conceded that the expert fee was not an expense recoverable under § 1920, but argued

that they were entitled to recover such fee pursuant to Rule 26(b)(4)(C).

The Advisory Committee Note relating to this subpart of the rule recognizes that a party is

entitled to recover a fair portion of expenses incurred by its own expert in responding to an

 

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Rule 26(b)(4)(C) provides a method for fairly allocating the costs of discovery, and

is available to prevailing and non-prevailing parties alike regardless of the final outcome of the case.

Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319, 333 (5th Cir. 1995). 

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opponent’s discovery requests. The note provides that in implementing this provision a court may

issue protective orders or delay an assessment of such costs until after discovery is completed.

Technically speaking as a non-party an expert’s appearance for deposition can only be

compelled pursuant to a Rule 45 subpoena. In this court’s experience such a requirement is rarely

demanded by the party whose expert’s deposition is sought, primarily because of the party’s desire

to depose the requesting (opponent) party’s own expert. 

More frequently counsel for parties agree expressly or tacitly to produce their own clients’

experts without resort to Rule 26(b)(4)(C) and at their own clients’ expense. This alternative is

largely a pragmatic recognition that the expenses to which each party would be entitled under the

rule would, generally speaking, be equal or of such minor deviation as not to warrant the time and

expense which would be incurred in invoking the rule’s provisions. Such a procedure appears to

have been followed in this case. 

Plaintiff made his expert, Mark Johnson, available for deposition to Defendants without

seeking to require Defendants to pay for his time devoted to preparing for and appearing for his

deposition and in fact such expenses were paid by Plaintiff. Similarly Defendants imposed no

precondition to Ms. Suhre’s deposition appearance pursuant to Rule 26(b)(4)(C).1

 The fact that

Defendants sought no judicial determination with respect to Ms. Suhre’s deposition-related expenses

prior to the entry of judgment and incorrectly 

 

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Even if Defendants were entitled to recover expert witness expenses of Ms. Suhre,

the amount stated in their bill of cost exceeds the amount permitted under the rule. The cost bill lists

the sum of $4,614.00, but Ms. Suhre’s May 5, 2005, invoice attached as an exhibit reflects only the

sum of $2,030.00 incurred on April 14, 2005, for preparation and attendance at her deposition.

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including it as an item in their bill of costs also are relevant to the Rule 26 issue.2

The undersigned is mindful of the fact that in the Kellstrom case, supra, the Fifth Circuit

upheld an award for expert fees. 50 F.3d at 334-33. However, this affirmance was qualified and

based on the specific facts of that case. Id. At 336 n.37. It is clear that the discovery issues in

Kellstrom were long-standing and had been squarely joined by the parties long before the judgment

in that action. The absence of such issues in this case and the absence of any agreement between

counsel with respect to reimbursement of expert witness expenses more nearly approximates the

facts set out in Ellis v. United Airlines, 73 F.3d 999, 1011-12 (10th Cir. 1996) in which the Circuit

Court found no abuse by the district court in denying an untimely filed Rule 26(b)(4)(C) motion.

Finally, the award of expert fees under the rule is qualified by the initial phrase “Unless

manifest injustice would result.” In the present case it is undisputed that Plaintiff has never sought

to recover from Defendants the corresponding expenses of Mark Johnson associated with the giving

of his deposition. As Kellstrom noted, See n. 1, supra, he would be entitled to a similar award under

the rule. Further, Defendants never raised this issue in the context of a Rule 26 motion as did the

plaintiff in Ellis, but only sought to justify Ms. Surhe’s expenses in their § 1920 bill of costs after

Plaintiff attacked inclusion of the same in light of the Supreme Court’s decision in Crawford Fitting

Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494 (1987).

It is, therefore, recommended that Plaintiff’s motion to modify be granted in part as follows:

 

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Within fifteen (15) days of the date of the District Court’s order Defendants will file an

amended bill of costs in the amount of $7,843.99, which excludes fees and expenses incurred by its

expert witness, Karen K. Suhre.

Upon receipt of a copy of Defendants’ amended bill of costs Plaintiff will tender to

Defendants the total listed in the amended bill of costs.

A copy of this recommendation shall be transmitted to counsel for the parties.

SIGNED this 18th day of August, 2005.

 

 

____________________________________

 WM. F. SANDERSON, JR. 

 UNITED STATES MAGISTRATE JUDGE

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that you

must file your written objections within ten days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996)

(en banc), a party's failure to file written objections to these proposed findings of fact and

conclusions of law within such ten-day period may bar a de novo determination by the district judge

of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain

error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law

accepted by the district court.

 

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