IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

FRED HARALSON

Plaintiff.

VS.

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY

Defendant.

$

$

$

$

$ NO.3-05-CV-2513-BD

$

$

$

$

$

MEMORANDUM ORDER

Plaintiff Fred Haralson, by and through his attorney, has filed a motion to vacate the clerk's

entry of defendant's bill of costs in the amount of $3,486.84. After the motion was filed, plaintiff

agreed not to contest certain cost items totaling 52,462.10, and defendant agreed to withdraw a "skip

tracefee"intheamountof$81 .I9.(SeeJt.Stat.Rep., l/13/09at3). Thatleavesthefollowingcosts

in dispute: (l) $546.05 for the deposition of Virginia Haralson; (2) $103.50 for the deposition of

Jermaine Sanders; (3) $186.30 for the deposition of Les Tung; and (4) $107.70 for records

subpoenaed from U.S. Auto. The parties have briefed their respective positions in a joint status

report and the motion is ripe for determination.

A prevailing party is entitled to recover the costs of taking, transcribing, and reproducing

depositions that are "necessarily obtained for use in the case." 28 U.S.C. $ 1920(2); see also Coats

v. Penrod Drilling Corp., 5 F.3d 877,891(5th Cir. 1993), cert. denied, ll4 S.Ct. 1303 (1994).

While costs associated with a deposition taken solely for investigative or discovery purposes are not

recoverable, such costs should not be disallowed merely because the deposition was not ultimately

used at trial or in connection with a dispositive motion. See Bank One Texos, N.A. v. Apex Energy,
ZZC, No. 3-00-CV-2160-M, 2002 WL 22055 at * 1 (N.D. Tex. Jan. 4,2002) (Kaplan, J.) (citing

cases). The relevant inquiry is whether the deposition appeared reasonably necessary at the time it

was taken. Id., citing l0 C. Wright & A. Miller, Federal Practice and Procedure $ 2676 at 424 (3d

ed. 1998). Plaintiff argues that the depositions of Virginia Haralson, Jermaine Sanders, and Les

Tung were not necessarily obtained for use in his case because the depositions also were used by

State Farm to defend a separate lawsuit brought by Virginia Haralson. According to plaintiff, only

one-half of the costs of those depositions should be taxed against him. (See Jt. Stat' Rep., l/13/09

at 4). However, as defendant correctly notes, all three depositions were taken before Virginia

Haralson filed her lawsuit against State Farm. Although plaintiff contends that the "deposition of

these three individuals was arguably part of State Farm's investigation of Virginia Haralson's

insurance claim," (see id.),he does not identiff any questions asked by defense counsel that pertain

to Virginia's case. Nor has plaintiff provided the court with copies of the deposition transcripts for

review. Without such evidence, the court has little difficulty concluding that the depositions of these

witnesses, two of whom testified at plaintiffs trial, were necessarily obtained for use in the case.

The court reaches a different conclusion with respect to fees for records subpoenaed from

U.S. Auto. Like fees for deposition transcripts, fees for exemplification and copies of papers may

be taxed as costs if the papers are "necessarily obtained for use in the case." 28 U.S.C. $ 1920(4).

In his affidavit, defense counsel states that "[m]y office subpoenaed records from U.S. Auto relating

to Virginia Haralson's claim against Carmen Andrade-Silva in order to determine whether Virginia

Haralson raised a claim for bystander recovery in that matter, or whether she claimed to have been

injured in the accident." (Id.,Exh. A at2,fl S) (emphasis added). It is clear from this statement that

the U.S. Auto records were necessarily obtained for use in Virginia Haralson's case, not plaintiffs

case. This cost item is disallowed.
Accordingly, plaintiffs motion to vacate the clerk's entry of defendant's bill of costs [Doc.

#1Sll is granted in part and denied in part. The motion is granted with respect to the $107.70 fee

for records subpoenaed from U.S. Auto. Defendant has voluntarily withdrawn a "skip trace fee" in

the amount of $81 .19. In all other respects, the motion is denied. The clerk shall tax costs against

Plaintiff Fred Haralson in the amount of $3,297 .95.

SO ORDERED.

DATED: January 14,2009.

LAN

STATES N.{AGISTRATE JUDCts