true, however, that we cannot award costs as requested when “the costs cannot be obtained
reasonably by reference to supporting documentation[.}" arkins v. Riverboat Servs., Inc., 286 F.
Supp. 2d 976, 980 (N.D. Ill. 2003); see also Barnett v. City of Chi., 92 C 1683, 1999 WL
138813, at *9 (N.D. Ill. Mar. 5, 1999). A submission of itemized invoices is usually sufficient to
support a request for costs. See M.T. Bonk Company y, Milton Bradley Co., 945 F.2d 1404, 1410
(7th Cir. 1991).

H&B seeks to recover the costs of court reporter charges incurred on October 24, 2002
and for deposition attendance fees on October 8, 2002 and November 12, 2002 in the total
amount of $2,503.71. (R. 136, Def.’s Decl. in Support of Bill of Costs, Ex. C, Costs for Court
and Deposition Reporting.) H&B states that these costs represent the total court reporter fees for
the four depositions noticed by H&B reduced by the total amount of the transcript costs for those
four depositions. (R. 142, Def.’s Reply at 5.) Wilson has argued, however, that no depositions
took place on November 12, 2002. (R. 134, PI.’s Resp. at 3-4.) H&B has provided no
explanation in its reply brief for whether its request for attendance fees on that day was in error.
Nor has it provided any documentation showing that any depositions in fact took place on that
day.

The documentation supporting H&B’s request for attendance fees is lacking in other
respects. Rather than submitting the court reporters’ invoices, H&B submitted a series of copies
of the disbursement summary portions of invoices from Schiff Hardin & Waite LLP (Exhibit B)
and a table—the genesis of which is unclear-—-reflecting the vendor, date, description, and cost of

H&B’s deposition and court reporter costs from December 10, 2001 through April 24, 2004


We find that H&B has not submitted adequate documentation, however, to support its
request for $21,145.05 in copying costs from outside vendors. First, H&B has not provided the
price charged per page for copies made by outside vendors; rather, Jenkins simply averred that
the cost of copying “varied from vendor to vendor.” (R. 136, Decl. in Support of H&B’s Bill of
Costs at 4.) We cannot determine whether the charged amounts are reasonable unless we know
what the vendor charged. Even the cases that H&B cites indicate that the party seeking costs
should indicate the rate at which copies are priced. See Zigmut v. Bd. of Educ. of Chi., 91 C
0118, 1992 WL 220619, at *3 (N.D. Ill. Aug. 4, 1992); Jat’! Oil, 1998 WL 895557, at *2-3.

Second, though H&B has indicated how many pages were copied in-house, it has not
provided any information regarding the number of pages copied by outside vendors. (R. 136,
Def.’s Decl. in Support of Bill of Costs, Ex. D. Copying Costs.) Instead, it has provided a
table—again, the genesis of this table is unclear---that simply provides the name of the outside
vendor, the date of the copy job, and the total cost charged by the vendor. (/d.) This table
provides no information regarding the amount of copies made. H&B is not entitled to an infinite
number of copies of even necessary documents, and from its submissions we simply cannot
determine whether the amount of copying was truly necessary and reasonable.

Finally, H&B has made no attempt to show that it reviewed the outside charges to ensure
that it is only requesting costs for copies that were necessary to the litigation. Nor has H&B
explained why it is reasonable to reduce its in-house charges to account for unnecessary copies
but not to undertake a similar cxercise for its outside vendor copying. The descriptions it has
provided in Exhibit D for its outside vendor jobs are so general that we cannot determine whether

the copies made necessary and reasonable. Given the history of this litigation, this Court simply

10


We will, however, award the $206.00 H&B seeks in transcript preparation fees. Wilson
has not challenged the accuracy of these fees, but rather has argued that H&B has not
demonstrated they are reasonably necessary to the litigation. (R. 134, Pl.’s Resp. at 3.) H&B has
submitted an affidavit, however, stating that these fees were necessary to the litigation. The
burden thus is Wilson’s to demonstrate that the transcript preparation fees are not necessary. See
Chemetall GMBH v. ZR Energy, Inc., 99 C 4334, 2001 WL 1104604, at *24 (N.D. III. Sept. 18,
2001) (stating that “{a] court is to presume that deposition transcripts are reasonable and
necessary unless the [non-prevailing party] proves otherwise”). Wilson has not done so. As a
result—and because the Seventh Circuit has upheld costs incidental to depositions, see Finchum,
57 F.3d at 534—we will allow H&B the $206.00 it requests in transcript preparation fees.

Cc. Court Reporter Fees and Transcript Costs for Judge Ashman Hearings

H&B also seeks $620.52 for the costs of hearing transcripts and court reporter fees for
hearings before Judge Ashman. (R. 142, Def.’s Reply at 6.) Wilson conceded that H&B may
collect its costs for the transcripts before Judge Ashman, which amount to $353.33. (R. 134,
PI.’s Resp. at 4.) Because Wilson has effectively conceded that the hearing transcripts were
necessary, we only need to resolve whether H&B’s request for $620.52 in transcript and court
reporter fees is reasonable. Cengr, 135 F.3d at 453. H&B represented that this amount includes
the fees for seven hearings, including a Markman Hearing. (See R. 136, Decl. in Support of Bill
of Costs, Ex. C, Costs for Court and Deposition Reporting.) Thus the cost of the hearing
transcripts and fees average to less than $100.00 per hearing, which we consider reasonable given

this Court’s experience regarding the complexity of such hearings.


(Exhibit C).? (R. 136, Def.’s Decl. in Support of Bill of Costs at 2-3 & Exs. B&C.) This
documentation does not provide sufficient information for us to determine if the requested
attendance fees are reasonable. In its reply bricf H&B states that it “originally unintentionally
miscalculated the recoverable deposition costs” and now seeks only $7,358.48 rather than
$10,761.58. (R. 142, Def.’s Reply at 6.) Though H&B specifically withdrew its original request
for $1,014.00 for an additional court reporter at the deposition of George Manning, (id. at 4), it is
unclear from where H&B took the additional reductions from the costs listed in Exhibit C.?
Without any further explanation of why those costs are inaccurate, we cannot determine that the
remaining fees reflected in the invoices and table are accurate.

Though H&B is entitled to a presumption that it will recover its costs-—including court
reporter fees—as the prevailing party in this litigation, we cannot award costs without any
accurate explanation backed up by documentation demonstrating what costs it incurred. Because
H&B has not explained adequately the $2,503.71 it seeks in court reporter fees and deposition
attendance fees nor assured us of the accuracy of that number, we cannot award H&B those

costs.

°The genesis of the table categories is unclear because the Schiff Hardin & Waite LLP
invoice summaries do not list the specific court reporters, dates of depositions, or descriptions
that are provided in Exhibit C.

4We cannot tell from reviewing H&B’s affidavit, exhibits, and reply brief why H&B is
excluding $2,389.10 from its original request for costs. Subtracting $1,014.00 for the additional
court reporter from $10,761.58 brings H&B’s costs as shown in Exhibit C and the invoices down
to $9,747.58. Thus there is an additional $2,389.10 in costs listed in H&B’s documentation that
H&B now does not seek, apparently because those costs are a “miscalculation.” (R. 142, Def.’s
Reply at 6.)

6


to recover photocopying costs;” instead it must “provide the best breakdown obtainable from
retained records.” Northbrook Excess & Surplus Ins. Co. v. Procter & Gamble Co., 924 F.2d
633, 643 (7th Cir. 1991). Such a breakdown “is vital to provide the court with cnough
information to determine if the copies in question were reasonably necessary, in both price and
content, for use in the case.” Jn] Oil v. Uno-Ven Co., 97 C 2663, 1998 WL 895557, at *2 (N.D.
Ill. Dec. 14, 1998); see also Leggett & Platt, Inc. v. Hickory Springs Mfg. Co., 149 F. Supp. 2d
394, 397 (N.D. Ill. 2001) (denying photocopying costs where prevailing party did not submit
reliable verification of its costs).

We find that H&B has demonstrated that it is entitled to its in-house copying costs. It has
provided a general description of the documents copied, the number of pages copied, and the cost
per page that it charged for those copies.” (R. 136, Decl. in Support of H&B’s Bill of Costs at 3-
4.) Jenkins also averred that he reviewed all of the in-house copying charges and reduced the
total by 50% to ensure that H&B did not include any unnecessary copying charges in its bill of
costs. (dd, at 4.) Though not comprehensive by any means, we find that H&B’s submissions are
sufficiently detailed for us to find that the documents copied were reasonably necessary to the
litigation and that the requested $8,632.40 is a reasonable amount for its in-house duplication

costs. Int’! Oil, 1998 WL 895557, at *2.

‘H&B has represented that the categories of copied documents include discovery
documents, pleadings, motions, oppositions, memoranda, and other court documents, deposition
exhibits, patent files necessary to the case, exhibits prepared for the Markman hearing, and
documents from the DeMarini v. Worth case that Wilson put in issue in this case. (R. 142, Def.’s
Reply at 6-7.)


BT

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
WILSON SPORTING GOODS CO.,
Plaintiff,
No. 00 C 6517

Vv.

HILLERICH & BRADSBY CO., Judge Ruben Castillo

Defendant.

MEMORANDUM OPINION AND ORDER

After prolonged litigation, this Court cntered judgment in Defendant Hillerich & Bradsby
Co.’s (“H&B”) favor on October 27, 2004. (R. 122.) Pursuant to Federal Rule of Civil
Procedure 54(d)(1) and Local Rule 54.1, H&B has submitted a bill of costs seeking recovery of
its statutorily-permitted costs. (R. 135-1.) In its original bill of costs, H&B sought $10,761.58 in
deposition and court reporter costs and $29,507.45 in photocopying and exemplification costs.
(d.) In its reply to Plaintiff Wilson Sporting Goods Co.’s (“Wilson”) opposition to its bill of
costs, however, H&B concedes that it miscalculated the amount due for deposition costs and now
seeks $7,358.48 in deposition and court reporting costs. (R.142, Def.’s Reply at 6.) Wilson
argues that H&B has seriously over-stated its costs and that H&B is entitled only to $3,624.58 in
deposition costs and $1,564.80 in photocopying costs. (R. 134, Pl.’s Resp. at 6.)

LEGAL STANDARDS

Rule $4 establishes a presumption that the prevailing party in civil litigation will be
awarded statutorily-permitted costs. FED. R. Civ. P. 54(d); Fincum v. Ford Motor Co., 57 F.3d
526, 533 (7th Cir. 1995). The term “costs” as used in Rule 54(d) is defined by 28 U.S.C. § 1920,

which states that prevailing parties may collect costs including: “. . . (2) Fees of the court


CONCLUSION
For the reasons set forth above and pursuant to Federal Rule of Civil Procedure 54, Local

Rule 54.1, and 28 U.S.C. § 1920, we award H&B costs as follows:

. $4,028.25 for deposition transcript costs;

. $206.00 for deposition transcript preparation fees;

. $620.52 for hearing transcripts and court reporter fees for hearings before Judge
Ashman;

. $8,632.40 for in-house copying costs; and

. $5,286.26 for outside vendor copying costs.

Thus, we award H&B total costs in the amount of $18,773.43.

ENTERED: KA Zz

Judge Ruben Castillo
United States District Court
Dated: March 21, 2005


cannot conclude that the total outside copying vendor cost was reasonably spent in defense of
this litigation.

Because we cannot determine the reasonableness of the costs H&B has requested for
outside copying vendors, we will modify the requested amount consistent with our analysis of
what is a reasonable charge for outside vendor copying in the context of this litigation. We think
the best way to accomplish this is to significantly reduce H&B’s request by 75% to adequately
account for any copies that were made for the convenicnce of counsel or any other purpose that is
not recoverable under the statute. The reduction also accounts for potentially unreasonable
outside vendor per-page charges or copy jobs that may have included an unreasonable number of
duplications. This brings H&B’s outside vendor costs down to $5,286.26. Assuming a rate of
$0.15 per page, this reduced amount would reflect the cost of duplicating 35,242 pages of
documents. Given the number and volume of filings in this case, as well as Jenkins’s averment
that the claimed costs reflect copics of numerous categories of documents necessary to discovery
and hearings in this litigation, we do not find this number to be unreasonable. Asa result, we

will award H&B $5,286.26 in copying costs from outside vendors.


II. Photocopy Costs

H&B seeks $29,507.45 in photocopy expenses, which includes $21,145.05 for copying by
outside vendors and the remainder for in-house copying. (R. 135, Bill of Costs; R. 142, Def.’s
Reply at 6.) In the supporting affidavit, Jenkins represented that the in-house copying was billed
at a rate of $0.15 per page and that “[t]he rates for outside copying charges varied from vendor to
vendor.” (R. 136, Decl. in Support of H&B’s Bill of Costs at 4.) Wilson objects to the request
for photocopying costs, arguing that H&B has misrepresented the amount of recoverable copying
costs and failed to demonstrate that the copies it made were necessary to the litigation.* (R. 134,
Pl.’s Resp. at 5-6.)

Section 1920 expressly states that the prevailing party may recover its costs for “copies of
papers necessarily obtained for use in the case.” 28 U.S.C. § 1920(4). Copy costs are generally
only allowed for materials actually prepared for use in the litigation, rather than copies made for
the convenience of the attorneys. Harkins, 286 F. Supp. 2d at 982-83. “The burden is on the
party seeking reimbursement for photocopying costs to show that the photocopied items were
necessary; if that party fails to meet the burden, the court should not award costs for those items.”
Tirapelli v. Advanced Equities, Inc., 222 F. Supp. 2d 1081, 1086 (N.D. Il. 2002); Chemetall
GmbH, 2001 WL 1104604, at *33. To recover copy costs, the prevailing party is not required to

“submit a bill of costs containing a description so detailed as to make it impossible economically

“Though H&B has represented that it produced over 10,000 pages in discovery, (R. 142,
Def.’s Reply at 7), Wilson contends that H&B only produced 5,216 pages in response to
discovery requests, (R. 134, Pl.’s Resp. at 5). Wilson argues that because H&B has not
adequately explained what the approximately 196,716 pages of copies that make up H&B’s
request for costs we should award H&B no more than $1,564.80, which represents the cost
copies of twice the amount of documents H&B produced in discovery at a rate of $0.15 per page.
(R. 134, Pl.’s Resp. at 6.)

ow


Wilson Depositions H&B Depositions

Deponent Costs Deponent | Costs

George 242 pgs. x $0.75 = $181.50 James (212 pgs. x $3) + (212 pgs. x

Manning Hackett $0.75) = $795.00

James Sass_ | 137 pgs. x $0.75 = $102.75 Mark (122 pgs. x $3) + (122 pgs. x
Schrubbe | $0.75) = $457.50

Jay Bhatt 138 pgs. x $0.75 = $103.50, Mark (302 pgs. x $3) + (302 x $0.75)
Fritzke = $1132.50

Jeff Harris | 36 pgs. x $0.75 = $27.00 Michael (291 pgs. x $3) + (291 pgs. x
Eggiman | $0.75) = $1091.25

James 111 pgs. x $0.75 = $ 83.25

Eaves

Warren 72 pys. x $0.75 = $54.00

Larberg

Total $552.00 Total $3,476.25

Based on these calculations, H&B is entitled to recover deposition transcript costs in the amount
of $4,028.25.

B. Incidental Deposition Costs

H&B also secks recovery of certain costs incidental to the depositions, including court
reporter attendance fees and transcript preparation fees. (R. 142, Def.’s Reply at 5.) These costs
include $2,503.71 in attendance fees for the four depositions noticed by H&B—Hackett,
Schrubbe, Fritzke, and Eggiman. -and $206.00 for transcript preparation fees charged by court
reporters on November 13, 2002 and November 15, 2002. (R. 142, Def.’s Reply at 5; R. 136,
Def.’s Decl. in Support of Bill of Costs, Ex. C, Costs for Court and Deposition Reporting.) H&B
correctly points out that the Seventh Circuit has allowed recovery of incidental deposition costs

even though they are not expressly provided for by statute. Finchum, 57 F.3d at 534. It is also


deposition transcripts is reasonable.’ Cengr, 135 F.3d at 453. Under Local Rule 54.1(b), the
costs of deposition transcripts “shall not exceed the regular copy rate as established by the
Judicial Conference of the United States and in effect at the time the transcript or deposition was
filed unless some other rate was previously provided for by order of court.” At the time the
depositions in this case occurred, the Judicial Conference rate allowed for costs of $3.00 per page
for original transcripts and $0.75 per page for transcript copies. See Cengr, 135 F.3d at 455,
Zenith Elec. Corp. v. WH-TV. Broad. Corp., OL C 4366, 2004 WL 1631676, at *3 (N.D. Ill. July
19, 2004). Local Rule 54.1 also describes the number of transcript copies that are taxable: “only
the cost of the original of such transcript or deposition together with the cost of one copy each
where needed by counsel and, for depositions, the copy provided to the court shall be allowed.”
N.D. ILL. R. 54.1(b).

H&B seeks recovery of its costs for onc copy of six depositions noticed by Wilson and its
costs for the original transcript and one copy of the four depositions noticed by H&B. (R. 142,
Def.’s Reply at 3-5.) Wilson concedes that H&B is entitled to costs—at a rate of $0.75 per
page——for the depositions conducted by Wilson, but argues that H&B should only be
compensated for the cost of the original transcript —at a rate of $3.00 per page—for the
depositions conducted by H&B. (R. 134, Pl.’s Resp. at 2-4.) As noted above, however, the local
rules make clear that H&B is entitled to the cost of the original transcript plus one copy for
counsel of its own depositions. N.D. ILL. R. 54.1(b); Cengr, 135 F.3d at 455. Asa result, we

award H&B recovery of its deposition transcript costs as follows:

'We presume that the deposition transcripts are reasonably necessary to this litigation
unless Wilson demonstrates otherwise. See Movitz v. First Nat'l Bank of Chi., 982 F. Supp. 571,
574-75 (N.D. Ill. 1997).


reporter for all or any part of the stenographic transcript necessarily obtained for use in the case
... [and] (4) Fees for exemplification and copies of papers necessarily obtained for use in the
case.” See also Cengr v. Fusibond Piping Sys., Inc., 135 F.3d 445, 454 (7th Cir. 1998). In
determining whether to award costs, we must consider whether there is statutory authority for
recovery of the costs, whether the costs incurred were necessary to the litigation, and whether the
amount sought is reasonable. fd. at 453; Majeske v. City of Chi., 218 F.3d 816, 824 (7th Cir.
2000); Egebergh v. Vill. of Mount Prospect, 96 C 5863, 2004 WL 868643, at *1 (N.D. Ill. Apr.
20, 2004).
ANALYSIS

I. Deposition and Court Reporter Costs

H&B’s request for deposition and court reporter costs in the total amount of $7,358.48
can be organized into three categories as follows: |) deposition transcript costs ($4,028.25); 2)
incidental deposition costs including deposition attendance fees and transcript preparation fees
($2,709.71); and 3) court reporter fees and transcript costs for hearings before Judge Ashman
($620.52). We will address each category in turn.

A. Deposition Transcript Costs

The costs of deposition transcripts are taxable under 28 U.S.C. § 1920(2) as stenographic
transcripts. Majeske, 218 F.3d at 825; Cengr, 135 F.3d at 454. H&B has submitted the affidavit
of Manotti L. Jenkins—H&B’s counsel—stating that the deposition for which H&B seeks
recovery were each necessarily obtained for use in the case. (R. 136, Decl. in Support of Bill of
Costs at 2.) Wilson does not challenge Jenkins’s representation that the depositions were

necessary to the case, so our only inquiry is whether the amount that H&B seeks for the