Neither METRA’s assertion that its use of RCS in this manner is commonplace, nor the fact
that Mr. Brandenburger himself may have used RCS, shows that the particular costs claimed by
METRA here were necessary to the litigation; as such, those arguments carry no weight here, By
the same token, Mr. Brandenburger’s argument that he is not responsible for the costs of the RCS
services because METRA already had access to many of the records is also unpersuasive. We find
that iL was reasonable and necessary to METRA’s defense for METRA to take steps to ensure it had
complete records of Mr. Brandenburger’s medical and employment history. While some records
were available to METRA through its own files and (rom documents produced during discovery, no
one seriously asserts that those records were complete. We reject the suggestion, implicit in
Mr. Brandenburger’s objection, that METRA was required to take it on faith that all of the necessary
records were in its files or wore produced by the plaintilf. In a case where the plaintiff sought
substantial damages, we think it was rcasonable for METRA to go straight to the sources -
Mr. Brandenburger’s other employers and his numerous (approximately eleven) treating medical
personnel ~ to cnsure that METRA had all of these documents that could prove significant to
determining the extent of Mr. Brandenburger’s injuries, and their effect on the capacity to work.

Nor was MEYTRA required to give each third-party employer or medical provider a list of
documents METRA already possessed, and ask for production of “anything clse” regarding
Mr. Brandenburger. That approach likely would have resulted in the third partics complaining about
the burden of having to sift through documents to find those not on the list, which would be more
consuming than mercly copying the contents of a file. Mr. Brandenburger has not offered any facts

here to persuade us thal METRA forfeited ils right to recover costs for duplication of records by


obtained for the convenience of counscl, and thus were not taxable costs); L.E.0.C. v. Yellow
Freight Svstem, Inc., No. 98 C 2725, 1999 WI. 965854, at *3 (N.D, lll. Oct. 14, 1999) (deposition
transcript contained on a computer diskette that was supplementary to the printed transcript was for
the convenience of counsel).

METRA does not seek reimbursement for the costs of shipping the transcrip(s, but does
request reimbursement for the court reporters’ charges for appearance fees (which METRA does not
separately break out in its submission, but which the Court finds from its review of the invoices for
the depositions constitutes $479.00 of the requested costs). The Seventh Circuit has upheld the
discretion of trial] judges to award appearance fees as taxable costs, even though they are not
specifically mentioned in Section 1920, on the reasoning that they are incidental to the taking of the
deposition, Finchum v, Ford Motor Co., 57 F.3d 526, $34 (7" Cir, 1995); see also Held v, Held, 137
F.3d 998, 1002 (7"" Cir, 1998) (stating that a district court “may award (court reporter attendance
fees}... in its discretion”). There is a split among various judges of this district as to whether
Local Rule 54.1(b) climinates this discretion, and prohibits an award of the court reporters
attendance [ce where the transcript has been ordered. Compare Chemetall, 2001 WL 1104604, at
*25 (awarding attendance fees) and Denson v. Northeastern Illinois Regional Commuter Railroad
Corp., No. 00 C 2984, 2003 WL 21506946, at *2 (N.D, Lil, June 27, 2003) (declining to award
attendance fees, and recognizing split of authority). The Court does not belicve that Local Rule
54.1(b) was intended to divest the Court of the discretion that the Seventh Circuit has recognized it
possesses. {n relevant part, Tocal Rule 54.1(b) states that “(e]xcept as otherwise ordered by the
court, only the cost of the original of such transcript or deposition together with the cost of onc copy

gach where needed by counsel and, for depositions, the copy provided to the court shall be allowed.”

9


Recovery of costs for deposition transcripts is authorized by Section 1920(2), which pennits
an award of cosis for transcripts “necessarily obtained for use in the case.” The “transcripts necd not
be absolutely indispensable in order to provide the basis of an award of costs; it is enough thal they
are ‘reasonably necessary.” Barber, 7 F.3d at 645 (quoting State of Mlinois v. Sangamo Constr, Co.,
657 2d at 867 (7 Cir. 1981)). Further, “(t]he determination of necessity must be made in light of
the (acts known at the time of the deposition, without regard to intervening developments that later
render the deposition unneeded, ...”” Hudson v. Nabisce Brands, Inc., 758 F.2d 1237, 1243 (7" Cir.
1985) overruled on grounds not relevant here by Provident Bank v. Manor Steel Corp., 882 F.2d 258
(7" Cir. 1989); see also Movitz v, First Nat'l Bank of Chicago, 982 F. Supp. $71, 574 (N.D. Ill.
1997). We therefore turn to the question of the necessity of each of the disputed deposition
transcripts.

First, clearly the deposition transcript of Mr. Brandenburger himself was reasonably
necessary for METRA’s trial preparation, whether or not he was ultimately called at trial. METRA
may recover Mr. Brandenburger’s deposition transcript costs.

Second, deposition transcripts for witnesses who were later called to testify at trial by
Mr. Brandenburger were reasonably necessary (although being, called at trial is not an absolute
requisite to the transcript having been neecssary when obtained). It can scarcely be argued that it was
not “reasonably necessary” for METRA {o obtain transcripts for witnesses whom the plaintiff
decided to call to testify at trial, if for no other rcason than possible impeachment. The transcripts
of Mr. Missun, Dr. Rosenzweig, Mr, Mallen, and Dr. Hunton fall within this category; METRA may

recover the transcript costs for those depositions.


selecting a mechanism calculated to be less burdensome for third parties, a goal that is embodicd in
Federal Rule of Civil Procedure 45,

Nonetheless, this determination docs not end the inquiry. While METRA has demonstrated
that getting the records was reasonable and necessary, METRA has failed to provide “sufficient
documentation to permit determination of precisely how the [RCS | costs were incurred.” XCO Int,
2003 WT. 2006595, at *8. METRA purports to provide this information in its supplement to the bill
of costs (vee Def.’s Reply Mom., Ex. B). However, the information provided is merely a list of
invoices along with the entity subpoenaed by each and a brief description of the items subpoenaed.
There is no breakdown of how the costs were allotted between service of subpoenas, copying and
long distance phone calls. Without this information the Court cannot determine whether or not the
subpoena costs were in excess of those charged by the Marshal’s Service, and ultimately, whether
they were reasonable. And, there is no evidence of the number of pages copied, or the charge per
page. See Krislov v. Rednour, 97 F. Supp. 2d 862, 871 (N-D. Til, 2000) (“To collect for copying
expenses, parties must typically provide the number of pages copie[d] and the price per page”).
Therefore, we find (hat METRA may not recover the costs for these services.’

B. Deposition Transcripts, Pre-Crial Transcripts, and Trial Transcripts,

METRA seeks $2,891.50 in costs for obtaining twelve deposition transcripts and two
transcripts of pretrial hearings held shortly before wial. Mr. Brandenburger concedes that costs
should be awarded for two deposition transcripts of two witnesses (Dr. Robbins and Mr. Gall), but

claims that none of the other transcript costs are recoverable.

‘METRA makes a separate request for $21.40 in fevs for excmplification and copies of papers. The plaintiff
does not challenge that request (see Pl.’s Obj. at 5), and so we award that iter of cost as unopposed.

5


Vardon Gulf Co., Ine. v. Karsten Mfg, Corp., No. 99 C 2785, 2003 WL 1720066, at *9 (N.D. Il.
Mar. 31, 2003); Rogers v. City of Chicago, No. 00 © 2227, 2002 WL 423723, al *3 (N.D. Il, Mar.
15, 2002); contre Liquid Dynamics Corp, v. Vaughan Co., Inc.,No. 01 C6934, 2002 WL 31207212,
at *2 (N.D, [If, Oct. 2, 2002). We are hard-pressed to say it was not reasonably necessary for
METRA to obtain a transcript of Dr. An’s deposition, when it was required to do so under Rule 32(c)
when METRA submitted the videotape version. Thus, we award the costs for Dr. An’s deposition
transcript.

METRA also sceks the cost of the transcripts for two pre-trial hearings, citing In Re Brand
Name Prescription Drugs Antitrust Litigation, No. 94 C 0897, 1999 WL 759472, at *8, [NEED
FULL CITE] We agree that given the close proximity of (hese hearings to trial, and the fact that the
rulings made at the hearings were not documented in written orders, it was reasonably necessary to
obtain the transcripts to protect against Jater disputes concerning the meics and bounds of the district
judge’s rulings. Accordingly, METRA’s request for these transcript costs is granted.

We now turn to the amounts to be awarded for each of these transcripts of depositions and
court proceedings. METRA seeks reimbursement at the rate of $3.00 per page, a rate that is
permissible. See LR 54.1(b), LoCAL RULES FOR THE UNITRD STATS DISTRICT Court, NORTHERN
DISTRICT OF TLLINOIS (taxable transcript costs “shall not exceed the regular copy rate as established
by the Judicial Conference of the United States and in effect at the time of the transcript or
deposition was filed unless some other rate was previously provided for by order of court”)
Moreover, METRA has climinated from its request any charges for condensed transcript copies,
which we find to be appropriate. See, e.g., Chemetall GMBH y, ZR Energy, Inc., No. 99 C 4334,

2001 WL 1104604, at *25 (N.D. TIL Sept. 18, 2001) (condensed transcripts and ASCTI diskettes were


ae

Minute Order Porm 06/97)

United States District Court, Northern District of Minois

Name of Assigned Jud Sitting Judge if Other i i
as Mingieeate jeden Ronald A. Guzman ann esi od ude Sidney L. Schenkier
CASE NUMBER 01 C 7769 DATE 12/16/2003
CASE Brandenburger vs. NE IL. Reg, Commuter RR
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented, ]
DOCKET ENTRY;
qd) oO Filed motion of ( use listing in “Motion” box above.]
(2) a Brief in support of motion due
(3) Oo Answer brief to motion due . Reply to answer brief due
(4) Oo Ruling/Hearing on sct for at .
(5) im Status hearing[held/continucd to] {set for/re-set for] on set for at
(6) a Pretrial conference[held/continued to] [set for/re-set for] on set for at
(es) oO Trial[set for/re-set for] on at
@ a [Bench/Sury trial] [Hearing] held/continued to____at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CUFRCP4(m) OLocalRule 41.1 COERCP4i(ay(1) COFRCP41(a)(2).
ao [Other docket entry] Enter Memorandum Opinion and Order. For the reasons stated in the
Memorandum Opinion and Order, METRA’s bill of costs (doc. # 76) is granted in part and denied in part.
The Court awards costs in the amount of $2,912.90, consisting of $2,891.50 in transcript costs and $21.40
in copying costs. (o AQK
aly mf {For further detail sce order attached to the original minute order.]
No notices required, advised in open court,
No notices required «pt
umber of notices
Notices mailed by judge’s staff. DEC 4 7 2003
Notified counsel by telephone.
ao} Dockcting to mail notices.
Mail AO 450 form.
Copy to judge/magisteate judge. yuna 338 igia Sf
you 3 3
courtroom any
mm deputy's 4438 a 3A JR0 eu
initials awh
ate/time
gaat Set oie rang dep



v. AT. Gibbons, 482 U.S. 437, 439 (1 987), see also TD. v, LaGrange School Dist. No. 102, No. 02-
3928, 2003 WL 22682466, at *10(7" Cir. Nov. 14, 2003). Here, METRA. points to no contract that
provides this authority. Nor does METRA’s citation to 28 U.S.C. § 1821 provide statutory authority
for shifting costs. Section 1821 only establishes witness fee tates; it does not address who shall pay
them.
CONCLUSION

For the foregoing reasons, METRA’s bill of costs (doc. # 76) is GRANTED in part and
DENIED in part. The Court awards costs in the amount of $2,912.90, consisting of $2,891.50 in
transcript costs and $21.40 in copying casts.

ENTER:

YO cr AQe

SIDNEY L. SCHENKIER
United States Magistrate Judge

Dated: December 16, 2003


While Local Rule 54.1(b) docs not specify court reporter attendance fees as recoverable costs, the
same is (rue of Section 1920 —an omission that did not prevent the Seventh Circuit from recognizing
the trial court’s discretion lo award attendance fees as part of taxable deposition costs. Finchum, 57
13d at $34. And, we note that in /eld, the Seventh Circuit affirmed an award of costs by a trial
judge in this district that included court reporter attendance fecs, 137 F.3d at 1002, which could be
road as suggesting that such an award is not foreclosed by Local Rule 54.1(b), Accordingly, we will
exercise our diserction to award the court reporter appearance fee, which was a cost that METRA
reasonably incurred in order to obtain the deposition transcripts.

We thercfore award METRA the full amount of transcript costs sought — $2,891.50. In
awarding that amount, we note that METRA did not seck reimbursement for the full amount of costs
reflected in the invoices (even after the reductions noted above for condensed transcript copies, court
reporter charges in excess of $3.00 per page, and shipping), METRA did not explain the basis for
those reductions; but, since the amount it secks is supported, we find (hat METRA’s failure to do
so does not affect the validity of the reimbursement that it does seck.

c. Fees for Expert Witnesses.

METRA claims $40.00 each for the witness {ces for the depositions of Dr. Robbins and Dr.
Roscnzweig. We deny these costs. As we understand it, these fecs are a small part of the costs
METRA paid ($825.00 for Dr. Robbins and $750.00 for Dr. Rosenzweig) in order to depose the
plaintiff's experts: Dr. Robbins was a treating physician, and Dr. Rosenzweig was an expert retained
by the plaintiff. Thus, under Fed. R. Civ. P. 26(b)(4)(c), METRA was required to pay these fees as
a condition of securing the depositions of those experts. But expert deposition fees cannot then be

shifted to the losing party, absent “contract or explicit statutory authority.” Crawford Fitting Ca.

10


Third, we will award the deposition transcript costs for those witnesses whom METRA called
to testify at trial. It was reasonably necessary for METRA to obtain the transcript of those witnesses
to prepare them to testify at trial, and (o minimize the likelihood of their being impeached by giving,
trial testimony inconsistent with their deposition testimony. Mr, Klein and Mr. Stinson fall within
this category, METRA may recover the costs of their deposition transcripts.

Fourth, we will award the costs of those depositions thal METRA used in its summary
judgment motion, The Soukup and Gall depositions fall within this category. The fact that METRA
saw fit to use those transcripts in the summary judgment motion is prima facie evidence that they
were reasonably necessary when obtained. Mr. Brandenburger offers no explanation why the
lranscripts were not reasonably necessary to summary judgment, or why transcript costs are
appropriate for one session of the Gall deposition but not both. The fact that there appears to have
been no ruling in the summary judgment motion prior to trial is an “intervening development{],”
Hudson, 758 F.2d at 1243, that does not show the transcripts were not reasonably necessary when
obtained. We award the transcript costs for the Gall depositions, as well as the Soukup deposition.

Fifth, we will award the costs of Dr. An’s deposition transcript. Dr. An’s deposition
testimony was presented at trial by videotape. In Barber, the Seventh Circuit held the district courts
may not award costs for both videotape and stenographic copies of depositions. Barber, 7 F.3d at
645. However, Barber was decided prior to the 1993 amendments to the Federal Rules of Civil
Procedure, which added for the first time the requirement that a party who offers a videotape
deposition at trial “shall also provide the court with a transcript of the portions so offered.” Fed. R.
Civ. P. 32(c) (emphasis added), In the wake of this amendment, scveral courts have held that so long

as reasonably necessary, both transcripts and videotapes of depositions may be taxed as costs. See


AL Medical Records Obtained Through Record Copy Services,

MERA first secks $3,644.41 for service of subpoenas and obtaining plaintiff's medical and
employment records by Record Copy Services (“RCS”) (Def.’s Mem. at 4), Plaintiff argues that it
is not liable for the cost of these services because “these records were available to [METRA] from
its own Medical Department and/or Claims Department, and had been previously produced, for the
most part, by the plainuff[,]” and that the decision to use the service for obtaining the records was
mainly for the convenience of METRA’s attorney (PI.’s Obj. at 3). METRA responds that these
costs were reasonable because using such services is a common practice that is not unreasonably
costly, and because Mr. Brandenburger’s counsel used the service himself (Def.*s Mem, at 5-6).
METRA further argues that the records Mr, Brandenburger produced were related to the treatment
for the accident in question but did not contain his complete medical history, which METRA claims
was necessary to the litigation (/d. at 6). METRA concedes that it was already in possession of al
least some of Mr, Brandenburger’s medical history records when it sought these records, but claims
that it was not possible to be certain that the records were complete (dd. at 5-6).

In the Seventh Circuit, subpoena costs are limited to the rates that would be charged by the
Marshal’s Service. Collins v. Gorman, 96 F.3d 1057, 1060 (7" Cir. 1996). The Marshal’s rate is
currently $40.00 per hour for the first two hours and $20.00 for cvery hour thereafter, plus $0.31 per
mile. XCO Int'l Inc. v, Pacific Scientific Co., 2003 WL 2006595, at *8 (N.D. Ill Apr. 29, 2003).
Further, a court may deny the recovery of subpoena costs where the requesting party fails to provide
sufficient documentation to permit determination of precisely haw the costs were incurred. Jd. al
*9 (denying subpoena costs where reasonableness of expenses could not be determined because

submitted invoices did not reveal preciscly how costs were calculated).


I.

Pursuant to Federal Rule of Civil Procedure 54(b)(1), “costs other than attorneys’ fees shall
be allowed as a course to the prevailing party unless the court otherwise directs .. ..”” Consistent
with this directive, “the prevailing party is prima fucie entitled to costs and it is incumbent on the
losing party to overcome the presumption.” McGill v. Faulkner, 18 F.3d 456, 459 (7" Cir, 1994)
(emphasis added) (citations omitted). Here, Mr. Brandenburger does not assert the kinds of grounds
~ misconduct by METRA, or the inability of Mr. Brandenburger to pay costs due to indigency -that
might overcome the presumption and weigh against any award of costs at all. Weeks vy, Samsung
Heavy Indus, Co., Ltd, 126 F.3d 926, 945 (7" Cir. 1997).

Thus, we tur to the question of what costs are recoverable, Under 28 U.S.C. § 1920, certain
enumcrated costs may be recovered by a prevailing party: (1) fees of the clerk and marshal; (2) fees
of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in
the case; (3) fees and disbursements for printing and witnesses; (4) fees for excmplification and
copies of papers necessarily obtained for use in the case; (5) docket fees under 28 U.S.C. § 1923;
(6) compensation of court-appointed experts, compensation of interpreters, and salarics, fees,
expenses, and costs of special interpretation services under 28 U.S.C. § 1828. Provided that they
fall under one of these statutory categories, costs arc recoverable if they arc both reasonable and
necessary to the litigation. Cefadu v, Village of Lik Grove, 211 F.3d 416, 427 (7" Cir, 2000). Costs
that are incurred mercly for the convenience of the prevailing parly may not be recovered. Barber
v, Ruth, 7 F.3d 636, 645 (7" Cir, 1993).

With these standards in mind, we turn to an analysis of the specific costs sought by METRA.


IN THE UNITED STATES DISTRICT COURT.
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
BARRY 8S. BRANDENBURGER, }
)
Plaintiff, )
) No. 01 € 7769
vs. )
) Magistrate Judge Schenkier
NORTHEAST ILLINOIS REGIONAL )
COMMUTER RAILROAD CORPORATION )
d/b/a METRA, )
val)
Defendant. ) pornel

gw 17 0
MEMORANDUM OPINION AND ORDER

On May 28, 2003, a jury returned a verdict in favor of the defendant (known as “METRA”)
and against the plaintiff, Barry Brandenburger, on Mr. Brandenburger’s claim under the Federal
Employer’s Liability Act for injuries he allegedly suffered while employed by METRA (doe. # 70).
rhe presiding district judge entered judgment on the verdict (doc. #71), and on October 31, 2003,
denied Mr. Brandenburger’s motion for a new trial (doc. # 81)

As the prevailing party in this lawsuit, METRA has filed a bill of costs seeking $6,637.31.
Mr. Brandenburger has objected to the bill of costs (doc. # 76). The presiding district judge has
referred the dispute concerning METRA’s bilf of costs to this Court for decision (doc, #77). For
the reasons that follow, the Court grants in part and denies in part the bill of cosls, and awards

$2,912.90 in costs ta METRA,

Yo