1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CYNTHIA BUMPERS, Administrator )

Ad Litem for the Estate of Nelson Bumpers, )

et al., )

Plaintiffs, ) 

 ) 

v. ) CIVIL ACTION 08-00155-KD-N

 )

AUSTAL U.S.A., L.L.C, ) 

Defendant. )

ORDER

This matter is before the Court on Defendant’s Bill of Costs (Doc. 951), Plaintiffs’ 

Objection (Doc. 951), Costs Taxed by the Clerk (Doc. 961), Defendant’s Motion to Retax Costs

(Doc. 962) and Plaintiffs’ response in opposition (Doc. 964).

I. Background & Applicable Law

On April 3, 2015, Judgment was entered as to the remaining Plaintiffs’ claims, in favor of 

Austal. (Doc. 950). On April 16, 2015, Austal filed a Bill of Costs seeking to recover 

$63,744.79 ($50.00 for Clerk fees (Pro Hac Vice admissions); $518.21 for summons/subpoena 

fees; $37,585.65 for copies of transcripts necessarily obtained for use in the case; $10,614.68 for 

printing; $1,272.45 for witness fees/mileage/meals/lodging; $177.50 for exemplification and 

copies of materials necessarily obtained for use in the case; and $13,526.30 in “other” costs

(mediation, production of emails, expert related documents, and travel expenses for counsel)). 

(Doc. 951-1). Plaintiffs filed an objection. (Doc. 951). On August 7, 2015, $6,190.70 in costs 

were taxed by the Clerk in Austal’s favor (comprised of $4,978.25 for transcripts necessarily 

obtained for use in the case and $1,212.45 for witness fees). (Doc. 961). On August 17, 2015, 

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Austal moved to retax costs, seeking recovery of $63,744.79. (Doc. 962). 

Austal is the prevailing party in this case. “In the exercise of sound discretion, trial 

courts are accorded great latitude in ascertaining taxable costs.” Loughan v. Firestone Tire & 

Rubber Co., 749 F.2d 1519, 1526 (11th Cir. 1985). A court’s power to award costs to a 

prevailing party is grounded in part in Rule 54(d)(1) of the Federal Rules of Civil Procedure

which provides: “[u]nless a federal statute, these rules, or a court order provides otherwise, costs-

-other than attorney's fees--should be allowed to the prevailing party.” Thus, absent explicit 

statutory authorization, federal courts are limited to those costs enumerated in 28 U.S.C. § 1920.

Crawford Fitting Co. v. J.T. Gibbins, Inc., 482 U.S. 437, 445 (1987). 

Specifically, the following may be taxed as costs:

(1) Fees of the clerk and marshal;

(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in 

the case;

(3) Fees and disbursements for printing and witnesses;

(4) Fees for exemplification and the costs of making copies of any materials where the 

copies are necessarily obtained for use in the case;

(5) Docket fees under section 1923 of this title;

(6) Compensation of court appointed experts, compensation of interpreters, and salaries, 

fees, expenses, and costs of special interpretation services under section 1828 of this title.

28 U.S.C. § 1920. 

At first blush, there may appear to be such explicit statutory authorization for recovery of 

non-taxable costs in this case. Austal is a prevailing party in a Section 1981/Title VII action

through which a court may award costs incurred in defending the case even when not expressly 

listed in Section 1920. See, e.g., Gay v. Airtrain Airways, Inc., 427 Fed. Appx. 743, 744 (11th

Cir. 2011). That said, as Plaintiffs have highlighted, this Court has already ruled, in its 

discretion, that Austal is not entitled to recovery of such costs: “...this case is simply not an 

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appropriate case to award...nontaxable expenses to Austal based on frivolity. While Austal was 

ultimately successful with regard to all of the plaintiffs’ claims, it was not because Austal had an 

airtight defense with settled law and facts securely on its side.” (Doc. 749). This ruling was 

affirmed by the Eleventh Circuit. (Doc. 810). That portion of Austal’s motion asserting that 

“statutory authorization” exists to recover non-taxable expenses essentially ignores the rulings of 

this Court and that of the Eleventh Circuit. Nonetheless, that portion of Austal’s motion to retax 

premised on “statutory authorization” is DENIED in its entirety.

II. Discussion

A. Pro Hac Vice

Austal requests $50.00 for the Pro Hac Vice admissions of two (2) attorneys. (Doc. 951-

3). Pro Hac Vice fees are an expense of counsel, not recoverable under section 1920. Lane v. 

Accredited Collection Agency, Inc., 2014 WL 1685677, *9 (M.D. Fla. Apr. 28, 2014);

Covington v. Arizona Bev. Co., LLC, 2011 WL 810592, *3 (S.D. Fla. Jan. 25, 2011) (citing 

Exhibit Icons, LLC v. XP Cos., LLC, 2009 WL 3877667, *1 (S.D. Fla. Nov. 18, 2009) (citing 

Eagle Ins. Co. v. Johnson, 982 F. Supp. 1456, 1459-1460 (M.D. Ala. 1997), aff'd, 162 F.3d 98 

(11th Cir. 1998)). Thus, Austal’s request is DENIED.

B. Videography

Austal requests $5,993.35 for videotaping/video-synching (non-stenographic) costs for 

certain depositions ($625 Myron Barnes, $148.75 Myron Barnes, $710 Nelson Bumpers, 

$832.25 Frederick Carter, $157.50 Frederick Carter, $530 Nathaniel Reed, $755 Charles Stills,

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$2,234.85 Jeff O’Dell). (Doc. 951-5 at 5-6, 8, 10-11, 23, 44-45).1 Austal seeks these costs in 

addition to recovery of the costs for the deposition transcripts by stenographic means.

Rule 30(b)(3) provides as follows:

(3) Method of Recording.

(A) Method Stated in the Notice. The party who notices the deposition must state in the 

notice the method for recording the testimony. Unless the court orders otherwise, 

testimony may be recorded by audio, audiovisual, or stenographic means. The noticing 

party bears the recording costs. Any party may arrange to transcribe a deposition.

(B) Additional Method. With prior notice to the deponent and other parties, any party 

may designate another method for recording the testimony in addition to that specified in 

the original notice. That party bears the expense of the additional record or transcript 

unless the court orders otherwise.

Fed.R.Civ.P. 30(b)(3)(A)-(B). When a party notices a deposition to be recorded by: 1) nonstenographic means, or 2) by both stenographic and non-stenographic means, and no objection is 

raised at that time by the other party as to the method of recordation, it is appropriate to award 

the cost of conducting the deposition in the manner noticed. Morrison v. Reichhold Chem., Inc., 

97 F.3d 460, 464-465 (11th Cir. 1996) (deposition noticed as only videotape); Preis v. Lexington 

Ins. Co., 2007 WL 3120268, *3 (S.D. Ala. Oct. 22, 2007) (depositions noticed as both videotape 

and stenographic). If videotaped, the prevailing party must explain why it was necessary to 

obtain a videotape of the deposition in question. Morrison, 97 F.3d at 464-465. If the deposition 

notice does not state the method of recordation, and if there is no evidence that the party noticed 

a deposition to be videotaped instead of transcribed, the prevailing party may only recover costs 

for the stenographic transcript. Caribbean I Owners’ Ass’n, Inc. v. Great Am. Ins. Co. of N.Y., 

2009 WL 2150903, *6 (S.D. Ala. Jul. 13, 2009).

 1 Calculated by the Court based on the documents provided by Austal.

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With its pending motion, Austal did not submit the deposition notices for consideration. 

However, according to Plaintiffs,2 Austal noticed the depositions to be recorded via videotape or

stenographer -- not videotaped and transcribed by a stenographer. (Doc. 964 at 3). Austal’s

notice was apparently in the alternative – either by video or by stenographer. Austal’s notice of 

recordation method was thus neither 1) by non-stenographic means, nor 2) by both stenographic 

and non-stenographic means. Moreover, Austal has failed to sufficiently explain why it was 

necessary to obtain videos of the depositions in addition to stenographic transcripts, stating only 

summarily that “several of the video depositions of the Plaintiffs or other key witnesses were 

used at trial.” (Doc. 962 at 7 at n.6). Accordingly, Austal’s request is DENIED.

C. Transcripts

Austal requests $37,585.65 for trial and deposition transcripts of the 23 plaintiffs and 

members of its Human Resources Department and management. (Docs. 951-2 at 1-3; 962 at 5-

7). Of these costs, $4,978.25 in deposition transcripts were previously taxed as recoverable.

1. Trial Transcripts

Austal requests $5,297.80 for trial transcripts,3 asserting that these costs were incurred to 

prepare for a successful cross-examination of witnesses who testified in one trial and then 

testified in subsequent bifurcated trials:

 2 Asserted and submitted in a pleading subject to Rule 11, including but not limited to the following: “[b]y 

presenting to the court a pleading...or other paper....an attorney...certifies that to the best of the person’s 

knowledge, information, and belief, formed after an inquiry reasonable under the circumstances.....the factual 

contentions have evidentiary support....” Fed.R.Civ.P. Rule 11(b)(3).

3 Per Doc. 951-2 at 2-3, this sum also includes “download from PACER” charges, an audiotape 

transcription, and certified transcript excerpt. This sum was calculated by the Court based on the documents 

provided by Austal.

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...the expenses Austal incurred to obtain portions of the trial transcripts were necessary 

because the trials were severed and scheduled over a 21⁄2 year period. All of the Plaintiffs 

who testified in Trial I were identified as witnesses in Trials II-V. Austal could not 

effectively prepare its cross-examination of these witnesses without the benefit of their 

prior trial testimony. Indeed, as an example, in Trial I, the jury was unable to reach a 

verdict with respect to the claims of Plaintiffs Adams, Barnes, and Johnson. (Docs. 515-

1, 515-2, 515-5.) Their claims were tried again in Trial III, which commenced several 

months later. (Doc. 560 at 2). Obtaining their prior trial testimony was crucial for Austal 

to successfully cross-examine these Plaintiffs in their subsequent trials. (See, e.g., Doc 

803 at 160 (impeaching Adams in Trial III with prior trial testimony from Trial I; see also 

Doc. 803 at 235 (publishing transcript of Johnson tape recording to jury).)...

(Doc. 962 at 7).

The cost of trial transcripts may be recovered when such transcripts are necessarily 

obtained for use in the case. 28 U.S.C. § 1920(2). “Trial transcription costs may also be taxable 

...but again only if truly necessary for presentation of the case at trial, and not solely for 

convenience of counsel[]”...This determination is made “on a case-by-case basis...” Crouch v. 

Teledyne Cont. Motors, Inc., 2013 WL 203408, *4 (S.D. Ala. Jan. 17, 2013). “[W]hile the cost 

of daily trial transcripts should not be allowed as a matter of course, a district court may award 

the cost of daily trial transcript where the length and complexity of a trial make the daily 

transcripts necessary.” Kearney v. Auto–Owners Ins. Co., 2010 WL 1856060, *4 (M.D. Fla. 

May 10, 2010); Maris Distrib. Co. v. Anheuser–Busch, Inc., 302 F.3d 1207, 1226 (11th Cir. 

2002)). As enunciated in Goodwall Const. Co. v. Beers Const. Co., 824 F. Supp. 1044, 1064 

(N.D. Ga. 1992) (disallowing trial transcripts as costs as not indispensible and necessary):

...Both the statute and interpreting case law permit a prevailing party to recover costs for 

daily copies of the trial transcript where the transcript is “indispensable.” Farmer, 379 

U.S. at 415–416, 85 S.Ct. at 555; 28 U.S.C. § 1920(2). By indispensable, the Court 

means that the transcripts were not obtained primarily for the convenience of the 

attorneys, but were necessarily obtained for use in the case. Id.; Studiengesellschaft Kohle 

mbH v. Eastman Kodak Co., 713 F.2d 128, 132 (5th Cir.1983); In re Nissan Antitrust 

Litigation, 577 F.2d 910, 918 (5th Cir.1978). Factors to be considered are the complexity 

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of the issues tried, the length of the trial, and whether the attorneys are required to submit 

briefs and proposed findings to the court during trial. Farmer, 379 U.S. at 416, 85 S.Ct. at 

555. This is true even after the Crawford holding restricted the district court's ability to 

interpret the provisions under § 1920. See J.T. Gibbons, Inc. v. Crawford Fitting Co., 760 

F.2d 613, 615–16 (5th Cir.1985), vacated and reinstated in relevant part, 790 F.2d 1193, 

1194 (5th Cir.1986), aff'd, 482 U.S. 437, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987) (leaving 

undisturbed the lower court's holding permitting the taxing of costs for daily trial 

transcripts where necessarily obtained for use in the case)....

Additionally, there are courts within the Eleventh Circuit which recognize that other

federal courts have allowed the recovery of trial transcript costs when necessary to prepare for 

the cross-examination of a technical expert at that trial and when the Court reviewed portions of 

the transcript in reaching its decision. Friends of the Everglades v. South Fla. Water Mgt. Dist., 

865 F.Supp.2d 1159, 1164 (S.D. Fla. Sept. 20, 2011) and Woods v. Deangelo Marine Exhaust, 

Inc., 2010 WL 4116571, *7 (S.D. Fla. Sept. 27, 2010) (citing Charter Medical Corp. v. Cardin, 

127 F.R.D. 111, 113 (D. Md. 1989)). See also Sensormatic Elec. Corp. v. Tag Co. US, 2009 WL 

3208649, *4 (S.D. Fla. Oct. 2, 2009), report and recommendation, awarded trial transcript costs 

as “used the transcript for preparing for direct and cross-examination[.]”4

There are also courts within the Eleventh Circuit which have disallowed recovery of trial 

transcript costs when used to prepare for cross-examination. See, e.g., Scottsdale Ins. Co. v. 

Wave Tech. Communications, Inc., 2012 WL 750317, *2–3 (M.D. Fla. Mar. 7, 2012) (declining 

to tax cost of daily trial transcript as trial was not excessively long, issues were not complex, and 

multiple attorneys were present to take notes); Habersham Plantation Corp. v. Art & Frame 

Direct, Inc., 2011 WL 6138740,*2–3 (S.D. Fla. Dec. 9, 2011) (disallowing cost of daily trial 

 4 See also e.g., United Int’l. Holdings, Inc. v. Wharf (Holdings) Ltd., 174 F.R.D. 479 (D. Colo. 1997) 

(Portions of daily trial transcript ordered for use in direct and cross-examination, weekly “mini-closings,” and 

summation were necessarily obtained in complex commercial trial, and were properly taxable as costs).

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transcripts as trial was relatively short and counsel, therefore, could have relied on their own 

recollection for preparation); Durden v. Citicorp Trust Bank, FSB, 2010 WL 2105921, *2–3 

(M.D. Fla. Apr. 26, 2010) (declining to award costs of expedited trial transcript, finding the 

transcript was not necessary for use in the case, but rather was primarily for the convenience of 

counsel). Indeed, case law in the Eleventh Circuit suggests that counsel’s note taking during trial 

should replace any necessity for a trial transcript obtained for cross-examination preparation.5 

Moreover, other federal courts have disallowed such costs for cross-examination preparation.

6

 

 5 See, e.g., Pickett v. Tyson Fresh Meats, Inc., 2004 WL 3712721, *4 (M.D. Ala. Aug. 3, 2004) (“defendant 

argues that the daily transcripts were necessary...to assist in the presentation of its case. ‘[C]ounsel's reference to the 

transcripts during the trial does not testify to the need for them.’...Considering the lengthy nature of the trial, 

counsel likely used the daily transcripts to refresh their recollection about past testimony. ‘Any one of the lawyers 

sitting with trial counsel could have taken notes for that purpose.’... lead counsel...was assisted by numerous 

partners, associates, and paralegals who had ample opportunity to take notes, and...such note-taking would have 

served the same purpose as the daily transcripts[]”); Abbott Care, Inc. v. Epocal, Inc., 2012 WL 7810970, *6 (N.D. 

Ala. Nov. 5, 2012) (“Epocal asserts that the daily trial transcripts were reasonably necessary to...prepare for 

examination of witnesses....There were multiple attorneys and litigation support personnel in the courtroom each 

day of trial. Any of those individuals could have taken, and likely did take, notes in order to anticipate cross 

examination questions and legal arguments. The trial transcript undoubtedly was more complete than any notes a 

non-court reporter could have taken, but that does not mean that the daily transcripts were “necessary[]”).

6 See, e.g., Rodriguez v. General Dynamics Armament and Technical Prod., Inc., 775 F.Supp.2d 1217 (D. 

Hawai'i 2011) (requested costs for daily transcripts covering trial were not recoverable, as unnecessary for 

presentation of case even though contractor asserted that transcripts assisted in presenting accurate final argument 

and cross-examination of later witnesses, where contractor routinely ordered transcripts as matter of custom for 

mere convenience of having transcripts, and counsel's notes would traditionally be used to prepare final argument 

and examine later witnesses); Bucalo v. East Hampton Union Free School Dist., 238 F.R.D. 126 (E.D.N.Y. 2006) 

(citing Webb v. Bermudez, 2000 WL 1523140 (S.D.N.Y. 2000) and noting that district court did not consider 

defense counsel's use of daily transcripts as justification for assessing costs against plaintiff -- rather than rely on 

transcripts, counsel can prepare for cross-examination and summation by taking notes during testimony); John G. v 

Board of Ed. of Mt. Vernon Public Schools, 891 F.Supp. 122, 123 (S.D.N.Y. 1995) (granting motion to strike daily 

transcript costs and noting, for cross-examination purposes, attorneys typically take notes and need not refer to 

“precise language of witnesses”); Refuse & Environmental Sys., Inc. v. Industrial Serv. of Am., 732 F.Supp. 1209 

(D.Mass.1990), aff’d in part, rev’d in part on other grounds 932 F.2d 37 (refrained from ordering defendants to bear 

entire cost of trial transcript, where district court, rather than parties, needed transcript to resolve post-trial motions

and plaintiffs did not need transcript for cross-examination or any other trial purpose); United Rubber, Cork, 

Linoleum and Plastic Workers of Am,, AFL-CIO v. Lee Nat. Corp., 62 F.R.D. 194 (S.D.N.Y. 1974) (transcripts 

taxable as costs where it was necessary that both defendant and the court be furnished a stenographic record, in that 

trial stretched over a four-week period and the court requested the parties to submit briefs and availability of 

transcript became more than a convenience for the court in ruling on motions, but costs of expedited transcript 

would not be taxed since case did not involve expert witnesses whose cross-examination required daily transcript of 

(Continued)

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However, the case law references the securing of daily trial transcripts, during trial, for 

use during that trial. The situation before the Court is distinct. Austal seeks the costs to obtain 

trial transcripts not on a daily basis during any particular trial, but rather from one trial to the 

next, in this bifurcated case, to prepare for a “successful” cross-examination of “repeat 

appearance” witnesses from trial to trial (i.e., for impeachment). The undersigned has located 

case law which suggests that the trial transcript would have to be used in the second or 

subsequent trial, to even be potentially recoverable as a cost. See, e.g., Taylor v. Westinghouse 

Elevator Co., 1989 WL 132840, *2 (E.D. La. Oct. 31, 1989) (“Plaintiff further argues...the 

transcription fees of the mistrial should not be included as costs...Defendant...argues that the 

transcripts were used to prepare testimony of necessary witnesses at the trial, and to use for 

impeachment purposes if the witnesses testified differently at the second trial...The defendant in

this case did not use the transcript in the second trial although he may have used it to prepare for 

the second trial. Thus, the transcripts were not necessary for use at trial, and such costs should 

not be taxed against the plaintiff[]”).

Austal asserts that the trial transcripts costs are recoverable because they were used to 

prepare for cross-examination. Austal does not indicate if such transcripts were used in the 

subsequent trials. Austal does not even indicate which trial transcripts are at issue – simply 

seeking recovery for all of them. At best then, Austal may have used some trial transcripts to 

prepare for the other trials, but the Court is unable to independently recall to what extent. And 

 

their testimony and time was not of the essence); Cooke v. Universal Pictures Co, 135 F.Supp. 480 (S.D.N.Y.1955) 

(transcript while helpful was not necessary as prevailing party did not claim it assisted him in cross-examination).

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Austal has not provided this necessary information. Thus, upon consideration, Austal’s request 

is DENIED.

2. Deposition Transcripts

Austal seeks to recover deposition transcript costs as part of its $37,585.65 request. Of 

this sum, $4,978.25 in deposition transcripts was already taxed as recoverable (allowing for the 

depositions used at trial – namely Carver, Friedlieb and O’Dell). (Docs. 951-2 at 1-2; 951-5).7

Specifically, after reviewing Doc. 951-2 at 1-2 and deleting the trial transcripts, video entries and 

the amounts for Carver, Friedlieb and O’Dell, before the Court are $23,542.10 in deposition 

transcript costs comprised of the following: 1) as to Plaintiffs -- $715.70 for Earaton Adams, 

$806.15 for Robert Adams, $922.00 for Barnes, $520.90 for Bumpers, $742.55 for Carter, 

$674.10 for Cunningham, $1,336.55 for Hedgeman, $1,096.00 for Hollis, $822.85 for Johnson, 

$869.45 for Laffiette, $630.55 for Law, $955.95 for Matthews (including a $49 charge for nonappearance), $1,051.90 for Pettibone, $514.10 for Pratt, $612.85 for Reed, $1,150.20 for 

Roberson, $916.00 for Slay, $949.85 for Stills, $1,031.80 for Sullivan (including a $49 charge 

for non-appearance), $1,390.75 for Beverly Thomas, and $460.25 for Franklin Thomas, $669.55 

for Wells, and $603.10 for Williams; and 2) as to Others -- $547.50 for Browning, $331.95 for 

 7 Costs associated with late fees, expedited transcripts, where it is not shown that expediting the transcripts 

is indispensable, and postage are not taxable. Maris Distrib. Co. v. Anheuser–Busch, Inc., 302 F.3d 1207, 1225 (11th

Cir. 2002); Knight v. Paul & Ron Enters., Inc., 2015 WL 2401504, *9 (M.D. Fla. May 19, 2015). Likewise, the 

costs for digital and condensed deposition transcripts, summaries, and shipping of the transcripts are not 

recoverable. See, e.g., Ferguson v. Bombadier Servs. Corp. et al., 2007 WL 601921, *4 (M.D. Fla. Feb. 21, 2007) 

(denying recovery of condensed transcripts); Awwad v. Largo Med. Ctr., Inc., 2013 WL 6198856, *4 (M.D. Fla. 

Nov. 27, 2013) (denying recovery of shipping costs associated with deposition transcripts) (citing Watson v. Lake 

Cnty., 492 Fed. Appx. 991, 997 (11th Cir. 2012)). “Costs associated with delivering, shipping, or handling transcripts 

are ordinary business expenses and are not recoverable.” Kerns v. Pro-Foam of South Ala., Inc., 2007 WL 2710372, 

*3 (S.D. Ala. Sept. 13, 2007) (internal quotes omitted). In its submission, Austal has already subtracted the amounts 

on the deposition transcript invoices for condensed versions, depo drives and/or any delivery charges. As such, this 

is a non-issue on review of the motion to retax.

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Combs, $327.60 for Koblas, $1,796.25 for Lindley, $646.75 for Pate, and $448.95 for Robinson.

In this Court Standing Order 13 requires the prevailing party to submit a “written

representation ... that a substantial portion of the deposition was admitted in evidence on the trial 

of the case.” Otherwise the clerk may not tax the costs of either the original or a copy of a 

deposition unless otherwise ordered by the court. Id. Standing Order 13 provides that costs shall 

be taxed as follows:

1. Deposition Costs:

(a) The Clerk may tax the cost of an original deposition upon the written representation 

of counsel for a party claiming the cost that a substantial portion of the deposition was 

admitted in evidence on the trial of the case.

(b) The Clerk shall not otherwise tax the costs of either the original or a copy of the 

deposition (unless otherwise ordered by the court) and any party desiring to tax the cost 

of depositions other than those described in subparagraph (a) shall file in writing a 

motion to re-tax the costs pursuant to Fed.R.Civ.P. 54(d) [sic] and Local Rule 54.1 and 

present the matter to the court.

However, the court is not limited by Standing Order 13. As explained in Catanzaro v. Alabama 

State Port Auth., 2006 WL 3933275, *3 (S.D. Ala. Dec. 7, 2006) that:

The court has discretion to award costs under Section 1920 regardless of the limitations 

of Standing Order 13. Standing Order 13 provides that “any party desiring to tax the cost 

of depositions other than those described in subparagraph (a) shall file in writing a 

motion to re-tax the costs pursuant to Fed.R.Civ.P. 45(d) [sic] and Local Rule 54.1 and 

present the matter to the court .” Local Rule 54.1 provides the procedure for taxation of 

costs by the clerk in this court. It specifically states that “This order limits only the 

authority of the clerk to assess costs for certain items otherwise taxable under Section 

1920 but does not limit a prevailing party's ability to recover under the statute.” Thus, if 

the expenses are specifically enumerated in § 1920, the court upon proper motion by the 

prevailing party, may tax the expenses although they were correctly disallowed by the 

clerk pursuant to Standing Order 13 .....

(Id. (emphasis added)). See also Coulter v. J.C. Penney Corp., Inc., 2007 WL 1521634, *1 (S.D.

Ala. May 23, 2007).

Taxation of deposition expenses is authorized by 28 U.S.C. § 1920(2). United States 

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E.E.O.C. v. W&O, Inc., 213 F.3d 600, 620 (11th Cir. 2000). However, “[w]here the deposition 

costs were merely incurred for convenience, to aid in thorough preparation, or for purposes of 

investigation only, the costs are not recoverable.” Id. Whether the costs for a deposition are 

taxable depends on “whether the deposition was wholly or partially ‘necessarily obtained for use 

in the case.” Id. at 621. While admission into evidence or use during cross-examination at trial 

tends to demonstrate that a deposition transcript was necessarily obtained, “[i]t is not necessary 

to use a deposition at trial to be taxable[.]” W&O, 213 F.3d at 621; Kolesar, 313 F.2d at 840 

(stating that “the utility (and necessity) for a deposition is not alone measured by whether all or 

any part of it is formally offered in evidence as such[ ]”).8 “[O]btaining deposition transcripts for 

use during discovery may be taxable as long as it is necessary to the issues in the case when the 

deposition was taken.” Lovett v. KLLM, Inc., 2007 WL 983192, *6 (N.D. Ga. Mar. 26, 2007). 

“[D]eposition costs are taxable even if a prevailing party's use of a deposition is minimal or not 

critical to that party's ultimate success[.]” Ferguson v. Bombardier Serv. Corp., 2007 WL 

601921, *3 (M.D. Fla. Feb. 21, 2007). 

The burden falls on the losing party to show that specific deposition costs or a particular 

court reporter's fee was not necessary for use in the case or that the deposition was not related to 

an issue present in the case at the time of the deposition. W&O, 213 F.3d at 621; Helms v. Wal–

Mart Stores, Inc., 808 F. Supp. 1568, 1571 (N.D. Ga. 1992) (providing that “since both parties 

should be aware of the reasons to take a deposition, the non-prevailing party should explain why 

the court should not grant that cost[]”). A deposition taken within the proper bounds of discovery 

 8 The provisions of 28 U.S.C. § 1920(2) allow the taxation of fees of a court reporter who prepares a 

“stenographic transcript necessarily obtained for use in the case.” The trial judge has discretion in determining 

whether costs of copies are taxable and must decide whether the copies were necessarily obtained for use in the case. 

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will normally be deemed to be “necessarily obtained for use in the case” and its costs will be 

taxed unless the opposing party interposes a specific objection that the deposition was 

improperly taken or unduly prolonged. See, e.g., Air Turbine Tech., Inc. v. Atlas Copco AB, 

2008 WL 544731, *3 (S.D. Fla. Feb. 26, 2008). As such, Plaintiffs must pose a specific 

objection to any deposition transcript that it believes is not taxable. Id. See, e.g., Dillon v. 

Axxsys Int’l., Inc., 2006 WL 3841809, *6 (M.D. Fla. Dec. 19, 2006). 

Depositions have been found to be recoverable when witnesses were listed as trial 

witnesses but the depositions were not used or admitted at trial, as well as in other circumstances. 

Caribbean I, 2009 WL 2150903, *3-5. As explained in Caribbean I, 2009 WL 2150903, *3 

(footnote omitted):

...While admission into evidence or use during cross-examination at trial tends to 

demonstrate that a deposition transcript was necessarily obtained, “[i]t is not necessary to 

use a deposition at trial to be taxable[.]” W & O, Inc., 213 F.3d at 621; U.S. v. Kolesar, 

313 F.2d 835, 840 (5th Cir.1963)1 (stating that “the utility (and necessity) for a 

deposition is not alone measured by whether all or any part of it is formally offered in 

evidence as such[ ]”). “[O]btaining deposition transcripts for use during discovery may 

be taxable as long as it is necessary to the issues in the case when the deposition was 

taken.” Lovett v. KLLM, Inc., 2007 WL 983192, *6 (N.D.Ga. Mar. 26, 2007). 

“[D]eposition costs are taxable even if a prevailing party's use of a deposition is minimal 

or not critical to that party's ultimate success [.]” Ferguson v. Bombardier Serv. Corp.,

2007 WL 601921, *3 (M.D.Fla. Feb. 21, 2007). The burden falls on the losing party to 

show that specific deposition costs or a particular court reporter's fee was not necessary 

for use in the case or that the deposition was not related to an issue present in the case at 

the time of the deposition. W & O, Inc., 213 F.3d at 621; Helms v. Wal–Mart Stores, Inc.,

808 F.Supp. 1568, 1571 (N.D.Ga.1992) (providing that “since both parties should be 

aware of the reasons to take a deposition, the non-prevailing party should explain why the 

court should not grant that cost [ ]”), aff'd, 998 F.2d 1023 (11th Cir.1993)....

And as enunciated by the Eleventh Circuit in W&O, 213 F.3d at 621 (citations omitted):

Taxation of deposition costs of witnesses on the losing party's witness list is reasonable 

because the listing of those witnesses indicated both that the [prevailing party] might 

need the deposition transcripts to cross-examine the witnesses and that “the information 

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14

those people had on the subject matter of this suit was not so irrelevant or so unimportant 

that their depositions were outside the bound of discovery.”

See also Murphy v. City of Flagler Beach, 761 F.2d 622, 631 (11th Cir. 1985); Preis, 2007 WL 

3120268, *1-2. Additionally, while these depositions were not admitted into evidence at trial, 

these individuals testified at trial. See, e.g., Van Voorhis v. Hillsborough Bd. of Cty. Com'rs, 

2008 WL 2790244, *4 (M.D. Fla. Jul. 18, 2008). Depositions have also been deemed recoverable 

where individuals were not listed as trial witnesses and their depositions were not admitted into 

evidence at trial, but testified at trial. Caribbean I, 2009 WL 2150903, *5. Depositions have 

been deemed recoverable where individuals’ depositions were used at trial and the individuals 

were listed as trial witnesses, but the depositions were not admitted into evidence. Id. Finally, 

“[t]axation of deposition costs of witnesses on the losing party’s witness list is reasonable...” 

W&O, Inc., 213 F.3d at 621; Murphy, 761 F.2d at 631; Preis, 2007 WL 3120268, *1-2.

Austal has asserted as follows in support of its request for the deposition transcripts:

... Obviously, the depositions of the Plaintiffs were necessary for Austal to effectively 

prepare to cross-examine the Plaintiffs, all of whom were either parties or listed as 

witnesses in each of the 5 trials. In fact, most of the Plaintiffs who testified were 

impeached on numerous occasions with their prior deposition testimony. Introduction of 

the deposition transcript into evidence is not the measure of whether the expense for 

obtaining the transcript was necessarily incurred. Kolesar, 313 F.2d at 839-40. Moreover, 

most of the Plaintiffs who were not called as witnesses at trial were those whose claims 

were dismissed on summary judgment. Austal could not possibly have obtained summary 

judgment against these Plaintiffs without their deposition transcripts.

Similarly, obtaining the transcripts of Austal’s key HR and management witnesses was 

necessary for Austal to prepare its direct examination of these witnesses and to prepare 

the witness for cross-examination by the Plaintiffs. Additionally, some of the witnesses 

had moved outside of the subpoena power of the Court, and their testimony could only be 

presented by deposition. (E.g., Jeff O’Dell, Stephanie Pate.)...

(Doc. 962 at 6). Plaintiffs object to taxation of the deposition transcript costs, citing Standing 

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Order 13(1)(a), and asserting that substantial portions were not admitted into evidence at trial. 

(Doc. 952 at 2-7; Doc. 964 at 3; Doc. 964-1 at 2-7, 12). However, the burden fell to Plaintiffs to 

show that specific deposition costs or court reporter's fees were not necessary for use in the case 

or that depositions were not related to an issue present in the case at the time of the depositions. 

Plaintiffs have neither articulated as much nor provided support for such a finding.

The Court agrees with Austal, that as the prevailing party it incurred costs for depositions 

that were necessary for its case – including but not limited to as part of discovery, for its multiple 

motions for summary judgment and/or for the multiple bifurcated trials (and various other 

motions). Plaintiffs’ singular objection -- that a substantial portion of the depositions were not 

admitted into evidence at trial -- is unavailing. As explained in the case law set forth above, for 

deposition costs to be recoverable they do not necessarily have to be admitted (either in full or in 

part) at trial. Additionally, many of these deposed individuals were plaintiffs who testified live 

at trial or were listed as witnesses for the various trials; depositions costs have been awarded 

under such circumstances when necessarily incurred for the case. Caribbean I, 2009 WL 

2150903, *3-5. Moreover, the Court has reflected upon the history of this case and how 

profusely the depositions were utilized by Austal during the course of this litigation. Further, 

Plaintiffs have not established the depositions were unnecessary or unrelated to issues in the 

case. Upon consideration and based on the unique circumstances of this complex case, Austal’s 

request for the deposition transcript costs is GRANTED as to the recovery of certain deposition 

transcripts supra; and DENIED as to the full amount sought (video and trial transcripts are 

excluded). Thus, Austal is awarded additional deposition costs in the amount of $23,542.10.

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D. Trial Subpoenas

Austal seeks recovery of $367.809 incurred to serve one (1) trial subpoena ($70.00) on

Plaintiff Carlos Johnson (for the first trial) on September 26, 2011; and four (4) trial subpoenas 

on former Austal HR Manager Andrew Carver (for all trials) (1 for $70 on September 15, 2011, 

2 for $70 total on January 9, 2012, and 1 for $157.80 on March 12, 2015 (“two different 

addresses attempted, some wait”)). (Doc. 951-2, 951-4).

As set forth in Section 1920(1), “[f]ees of the clerk and marshal” may be taxed as costs. 

This includes trial subpoenas. While Section 1920(1) specifies “marshal,” the Eleventh Circuit 

has held service by a private process server to be compensable, provided that their rates do not 

exceed the cost of having the U.S. Marshals Service effectuate service. W&O., 213 F.3d at 623-

624. Thus, “private process server fees may be taxed” so long as they do not exceed the 

statutory fee authorized under Section 1921 (i.e., the fee for service of process cannot exceed that 

charged by the U.S. Marshal). Id. See also 28 C.F.R. § 0.114(a)(3). Additionally, a party may 

recover the costs for service of a trial subpoena even when that party does not call the witness at 

trial. See, e.g., Maris, 2001 WL 862642, *1 (awarding costs for service of subpoenas on two trial 

witnesses who never testified); Barrera v. Weiss & Woolrich Southern, 900 F.Supp.2d 1328, 

1333 (S.D. Fla. 2012) (same). Moreover, in order to determine whether recovery for trial 

subpoena costs are appropriate, “the court need only determine whether the subpoenas were 

reasonable and necessary when served in light of the facts known at the time of service[.]” 

Movitz, 982 F.Supp. at 574; Powell, 548 F.Supp.2d at 1359 (“[i]n order to recover subpoena 

 9 While the sum was not specified by Austal in its motion to retax, a review of Doc. 951-2 delineates the 

costs associated with these specific trial subpoenas.

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costs for witnesses who did not ultimately testify at trial, the witnesses must have been 

reasonable and necessary[]”).

At the outset, the rates for service of trial subpoenas when the foregoing subpoenas were 

served include the following: $55/hour in September 2011; $55/hour in January 2012; and 

$65/hour in March 2015.10 As such, those are the maximum recoverable rates (plus travel costs 

and any out of pocket expenses if requested) for the trial subpoenas.

Concerning Carver, Plaintiffs assert that they had served him with trial subpoena and 

called him to testify during their case in chief, such that Austal’s additional subpoenas were

unnecessary. Plaintiffs add that Austal did not call on Carver to testify in their case. Per Austal,

however, Carver was vital to their case and a copy of Plaintiffs’ subpoena was not provided so it 

“had no way of knowing whether Plaintiffs would elect to call Carver as a witness...[and] would 

have been grossly remiss to simply rely on Plaintiffs....” (Doc. 962 at 5). As for the duplicative 

nature of the subpoena, “Plaintiff, however, cites no authority in support of this argument, and 

the undersigned finds the argument unpersuasive.” Cadle v. Geico Gen. Ins. Co., 2015 WL 

4352048, *11 at note 6 (M.D. Fla. Jul. 14, 2015). Moreover, Carver provided abundant 

testimony at the trials, and it does not matter that Austal did not call him to testify for their case. 

See, e.g., Maris, 2001 WL 862642, *1; Barrera, 900 F.Supp.2d at 1333. The Court finds it was 

reasonable and necessary for Austal to serve Carver with a subpoena. 

As for Johnson, Plaintiff’s’ objection to the subpoena as a recoverable cost is because he 

 10 See, e.g., United States v. Miller, 2015 WL 1056015, *4 (M.D. Fla. Feb. 17, 2015) ($65/hour as the 

applicable rate); DuChateau v. Camp Dresser & McKee, Inc., 2012 WL 1069166, *3 (S.D. Fla. Mar. 29, 2012) 

($55/hour as the applicable rate); Frazier v. Absolute Collection Serv. Inc., 767 F.Supp.2d 1354, 1369 at note 5 

(N.D. Ga. 2011) (same).

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was a plaintiff and so a subpoena was not necessary. Plaintiffs add that Austal never sought to 

serve him through counsel. Austal contends Johnson was still employed by the company during 

the first trial and prior to the trial starting, Austal adds that it learned that Johnson was interested 

in dismissing his lawsuit (i.e., that he may no longer be a party) and had been telling other 

employees at the company that he had not been racially harassed. Austal states it anticipated 

calling Johnson as a defense witness even if he dismissed his case in advance of trial. The Court 

finds it was reasonable and necessary for Austal to serve Johnson with a subpoena.

In sum, Austal’s request for the costs of serving the trial subpoenas on Carver and 

Johnson is GRANTED in part and DENIED in part as follows: GRANTED as to the recovery 

of the trial subpoenas; and DENIED as to the full amount sought. Specifically, the amounts are 

reduced to comply with the U.S. Marshals’ cost in effect at the time (i.e., Johnson’s September 

26, 2011 $70 subpoena is reduce to $55, Carver’s $70 September 15, 2011 subpoena is reduced 

to $55, and Carver’s $70 January 9, 2012 subpoenas are reduced to $55). Additionally, 

regarding Carver’s $157.80 March 12, 2015 subpoena, as no explanatory information was 

provided by Austal as to “two addresses” and additional “wait time,” said subpoena is reduced to

$65, the U.S. Marshal’s going rate at that time. Thus, Austal is awarded $230.00.

E. Printing

Austal seeks recovery of $10,614.68 for printing expenses. (Docs. 951-1; 951-2 at 3-5; 

951-6; 962 at 8). In support, Austal contends as follows:

This case was filed on March 20, 2008 (Doc. 1) and was actively litigated for more than 7 

years through the date of the last trial which concluded in April 2015. In Trial I alone, 

between the parties, more than 500 exhibits, many of which were voluminous, were 

identified for use during trial. (Docs. 444, 468.) Further, there have been over 960 filings 

with the Court. (See docket.) Clearly, Austal necessarily incurred printing expenses. 

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Merely complying with the Court’s pretrial instructions required Austal to print many 

thousands of pages. Yet, Austal was not awarded any amount for its claimed printing 

expenses, even those to which Plaintiffs did not object (totaling $3,896.10, Doc. 952 at 

9.) The printing expenses identified in Austal’s Bill of Costs were necessarily incurred 

and should be taxed in Austal’s favor.

(Doc. 962 at 8 (footnote omitted)).

Specifically, Austal seeks to recover printing expenses for courtesy copies of summary 

judgments ($896.50), trial exhibits (in bench binders) ($1,651.89, $687.08, $1,113.39, $1,170.73, 

$92.90, $222.29, $34.84, $1,071.24, $489.70), demonstrative trial exhibits/“blow ups” ($100.10, 

$150.16, $400.40, $396.76, $20.53)

11, trial exhibits placed on computer disk, copies of Beverly 

Thomas’ state court case CV 2005-003745.51, copies of court pleadings/orders in this case,

correspondence with counsel, and color copies of transcripts (presumably for highlighted 

deposition designation bench books provided to the Court). Plaintiffs object to $3,896.10 of 

these requested costs (Doc. 952 at 8-9), contending that the demonstrative exhibits/blow-ups are 

not recoverable, bench binders were an unnecessary expense for plaintiffs Slay, Bumpers, Reed

and Cunningham as those trials never took place, and copying the entire docket as well as 

correspondence with opposing counsel were unnecessary expenses.

Section 1920(4) provides for the taxation of copying costs and section 1920(3) provides 

for the taxation of “[f]ees and disbursements for printing.” 28 U.S.C. § 1920(3) & (4). While 

Austal need not provide “an accounting for each photocopy”, it has the burden to provide 

“evidence showing the nature of the documents copied and how they were used.” Dillon v. 

Axxsys Int'l, Inc., 2006 WL 3841809, *7 (M.D. Fla. Dec.19, 2006); Powell, 2010 WL 4116488, 

 11 These include 24x36 color enlargements showing pay increases for the Hedgeman and Carter trials, pay 

rates for the Adams, Barnes and Johnson trials, “time lines,” and “noose time line for closing.”

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at *17. As set forth in Weller v. Finger, 2010 WL 2465522, *9 (S.D. Ala. Jun. 15, 2010):

...“[I]n evaluating copying costs, the court should consider whether the prevailing party 

could have reasonably believed that it was necessary to copy the papers at issue.” W & O, 

213 F.3d at 623. For example, the cost of copying documents produced by an adverse 

party may be awardable under this rule. Id. However, “[e]xtra copies or copies prepared 

for the convenience of counsel are not taxable....” Biomedical Disposal, Inc. v. 

Mediq/PRN Life Support Services, Inc., 2007 WL 2593075 at *3 (N.D.Ga. September 4, 

2007); accord Bates v. Islamorada, Village of Islands, 2007 WL 2113586 at * 18 

(S.D.Fla. July 23, 2007); Pickett v. Tyson Fresh Meats, Inc., 2004 WL 3712721 at *6 

(M.D.Ala. August 3, 2004) (the first copy of opponent's trial exhibits was necessarily 

obtained, but the second and third copies were for the convenience of counsel and not 

taxable).... Defendant, citing Miller v. Kenworth of Dothan, Inc., 117 F.Supp.2d 1247 

(M.D.Ala.2000), also asserts that plaintiff failed to specify the purpose of the photocopies 

or explain the nature of the documents copied. In Miller, the court found that a claim for 

copying described only as “copying expense[s]” and “[g]eneral copying throughout file” 

was not sufficient documentation to demonstrate that the photocopying costs were 

necessary for use in the litigation. Id. at 1265....While not every page is described, it is 

apparent what is being copied and the court finds that, without any specific objections to 

particular documents, the descriptions are sufficient to demonstrate that they were 

necessary....

Additionally, costs “for copies of original documents possessed by the prevailing party are not 

taxable” and costs “for extra copies and for documents prepared for convenience, preparation, 

research, or for the records of counsel are not taxable.” Scottsdale Ins. Co., 2012 WL 750317, 

*3; Gray v. Novell, Inc., 2012 WL 3886026, *2 (M.D. Fla. Sept. 6, 2012); Autry Petroleum Co. 

v. BP Products North America, Inc., 2010 WL 3239010, *2 (M.D. Ga. Aug. 16, 2010). 

Moreover, costs of physical exhibits like charts, models, or replicas and costs of foam board 

blow-ups are generally not allowed. Arcadian Fertilizer, L.P. v. MPW Indus. Servs., Inc., 249 

F.3d 1293, 1297 (11th Cir. 2001) (“[i]n this circuit, physical exhibits like models and charts 

simply may not be taxed as costs because there is no statutory authorization[]”); Moncus v. 

Johanns, 2006 WL 1180950, *6 (M.D. Ala. May 2, 2006) (“While the enlargements of these 

memoranda may have demonstrated counsel's points with increased clarity, enlargement of the 

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documents was not necessary within the meaning of § 1920. The government could have used 

the letter-size originals and the Elmo to achieve a similar effect.”) (citation omitted); Powell, 

2010 WL 4116488, at *21. See also In re Scientific–Atlanta, Inc. Securities Litigation, 2011 WL 

2671296, *1 (N.D. Ga. Jul. 6, 2011). Further, copying costs “merely incurred for convenience, 

to aid in thorough preparation, or for purposes of investigation only” are not recoverable.” 

W&O, 213 F.3d at 620–621. This includes copies made for trial notebooks for counsel. These 

costs are not taxed because trial notebooks are generally prepared for convenience of counsel and 

not necessarily obtained for use in the case. Powell, 2010 WL 4116488, *16 (finding costs for 

creation of notebooks including binders and tabs was not taxable); Scottsdale Ins. Co., 2012 WL 

750317, *3 (costs “for documents prepared for ... preparation ... are not taxable[]”). 

Austal submitted invoices for the costs incurred for preparing courtesy copies of the 22 

summary judgments, trial exhibits (for the Court, for Plaintiffs, and for its own convenience), 

and demonstrative exhibits/blow ups for trial, but no invoices for the other requested items12 (i.e.,

many of the printing costs only indicate – as support – Austal’s statement that it conducted a 

“manual count”). The Court cannot award costs for printing when Austal has provided no 

supporting invoice for having incurred said costs. Additionally, the Court finds persuasive 

Plaintiffs’ objections that: 1) demonstrative exhibits/blow-ups are not recoverable (Arcadian 

Fertilizer 249 F.3d at 1297 and Moncus, 2006 WL 1180950, *6)); 2) bench binders were an 

 12 For example, while Austal references D7 for Thomas’ trial exhibits “produced on disk”, D7 (Doc. 951-6 

at 8) is not an invoice documenting same; and Austal references D8 as showing the copying fees for Beverly 

Thomas’ state court case but D8 (Doc. 951-6 at 9) shows no such charge. As for the bench books (presumably 

deposition designations) Austal lists the copies “manual[ly] counted,” submitting no invoices for same. The same 

applies to Austal’s request for certain bench binders for “March 16 and March 25 trials.” (Doc. 951-2 at 4).

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unnecessary expense for plaintiffs Slay, Bumpers and Reed as those trials never took place; and 

3) Austal has not explained the necessity for copying the entire docket record of pleadings and/or

correspondence with opposing counsel. Moreover, the Court finds that certain portions of the 

copies/printing labeled “trial exhibits” contained costs incurred for convenience of counsel and 

such are not recoverable. See, e.g., Powell, 2010 WL 4116488, *16 and Scottsdale Ins. Co., 

2012 WL 750317, *3. As a result, the following are not recoverable: Doc. 951-6 at 3, noting “1 

set in binders for work copies” and the cost “for originals” as $650.63; Doc. 951-6 at 10, noted 

as “original” at $555.97; Doc. 951-6 at 11, noted as “original” at $541.98; Doc. 951-6 at 121, 

noted as “original” at $439.32; and Doc. 951-6 at 122, noted as “original” at $302.04. 

Upon consideration, Austal’s request is GRANTED in part insofar as it may recover a 

total of $2,611.00 for printing costs for the costs incurred for the courtesy copies of the 22 

summary judgments ($896.50) and for the trial exhibits for those trials which took place 

(excluding Slay, Bumpers, Reed and Cunningham costs and costs incurred for convenience of 

counsel -- thus including only $687.08 (Doc. 951-6 at 4), $268.82 (Doc. 951-6 at 10), $285.51

(Doc. 951-6 at 11), $349.23 (Doc. 951-6 at 121) and $123.86 (Doc. 956-1 at 122)); all other 

requested costs are DENIED.

F. Certified Copies13

Austal seeks recover of $177.50 for certified copies of materials necessarily obtained for 

use in the case. (Docs. 951-1; 951-2 at 7; 951-8; 962 at 8). Specifically, Austal seeks to recover 

the costs for certified copies of the District Clerk of Mobile County court records for Plaintiffs 

 13 Per Standing Order 13, “[t]he trial judge has discretion in determining whether costs of copies are 

taxable[.]”

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Hedgeman, Barnes, Hollis, Cunningham, Pratt and Reed.

Section 1920 permits costs to be taxed for certified copies of documents and copies of 

documents ‘necessarily obtained for use in the case.’” Goodwall, 824 F.Supp. at 1063. As 

specified in Butler v. Wright, 2010 WL 599387, *7 (M.D. Fla. Feb. 16, 2010):

...Under § 1920(4), photocopying costs “necessarily obtained for use in the case” are 

compensable. General photocopying costs are not compensable. Duckworth v. Whisenant,

97 F.3d 1393, 1399 (11th Cir.1996). The party seeking to recover photocopying costs 

must come “forward with evidence showing the nature of the documents copied and how 

they were used.” Fulton Fed. Sav. & Loan Ass'n of Atlanta v. Am. Ins. Co., 143 F.R.D. 

292, 300 (N.D.Ga.1991)...without further documentation, the court is left to speculate as 

to the nature of the documents and how they were used....

See also PNC Bank Natl. Assoc. v. Orchid Group Invest. L.L.C., 2014 WL 4954779, *1 (M.D. 

Fla. Oct. 2, 2014) (awarding costs to obtain certified copies of state court records used as 

exhibits at trial); Exhibit Icons, 2009 WL 3877667, *5 (awarding costs for certified copies). 

Additionally, as set forth in W&O, 213 F.3d at 623, “in evaluating copying costs, the court 

should consider whether the prevailing party could have reasonably believed it was necessary to 

copy the papers at issue.” See also Loranger, 10 F.3d at 784 (the party seeking an award of costs 

bears the burden of submitting a request that enables the Court to determine whether those costs 

are recoverable). However, “[e]xtra copies or copies prepared for the convenience of counsel are 

not taxable....” Biomedical Disposal, Inc. v. Mediq/PRN Life Support Servs., Inc., 2007 WL 

2593075, *3 (N.D. Ga. Sept. 4, 2007); accord Bates v. Islamorada, Village of Islands, 2007 WL 

2113586, *18 (S.D. Fla. July 23, 2007); Pickett v. Tyson Fresh Meats, Inc., 2004 WL 3712721, 

*6 (M.D. Ala. Aug. 3, 2004) (the first copy of opponent's trial exhibits was necessarily obtained, 

but the second and third copies were for the convenience of counsel and not taxable). Moreover, 

per Miller v. Kenworth of Dothan, Inc., 117 F.Supp.2d 1247, 1265 (M.D. Ala. 2000), a 

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prevailing party’s failure to specify the purpose of the photocopies or explain the nature of the 

documents copied is insufficient. 

The Court is familiar with Austal’s use of the certified copies of the court records of

Plaintiffs Hedgeman, Barnes, Hollis, Cunningham, Pratt and Reed, as used at trial, and thus is 

not left to speculate as to their use. Austal has also alleged that the copy costs were necessarily 

incurred for use in the case. Upon consideration, Austal’s request is GRANTED.

G. Other expenses

Austal initially sought recovery of $13,526.30 in “other” costs (for mediation, production 

of emails/digital data, expert related documents, and attorney travel expenses). Austal now

appears to seek recovery of only $8,801.97 (for expert witnesses, mediation, and travel) on the 

basis that it is a prevailing party in a Section 1981/Title VII case. (Doc. 962 at 9-11). 

Regardless of the amount, this Court has already ruled, with the Eleventh Circuit’s affirmance, 

that there is no basis for Austal to recover non-taxable costs under the civil rights statutes. As 

such, this Court will only address the requested costs with regard to Section 1920’s applicability.

1. Emails/electronic data

Austal seeks to recover $4,723.83 for emails and electronic/digital data compiled by 

Plaintiffs’ expert Dr. Bradley, as copying costs. (Doc. 962 at 8-9 and n.9 (citing Doc. 951-9 at 

G2, G3, G5)). Specifically, Austal seeks recovery to produce emails as part of discovery and to 

obtain already compiled electronic data to support its Daubert motion to exclude Dr. Bradley’s 

testimony, characterizing them as “digital copies” necessarily obtained for use in the case under 

Section 1920(4). However, the costs sought do not relate to a deposition transcript or a true 

“digital copy.” And creating an electronic database/compilation or enhanced digital files “goes 

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well beyond the statutory intent” for taxable digital copies. Finnerty v. Stiefel Labs., Inc., 900 

F.Supp.2d 1317, 1321-1322 (S.D. Fla. Oct. 16, 2012) (refusing to award the costs of an 

electronic database that was solely for the creating party's convenience). See also e.g., Johnson 

v. Allstate Ins. Co., 2012 WL 4936598, *6 (S.D. Ill. Oct. 16, 2012) (refusing to award costs for 

creation of litigation database, processing of ESI, extraction of metadata, deduplication, 

electronic data hosting, or preparation for production of ESI); Abbott Point of Care, Inc. v. 

Epocal, Inc., 2012 WL 7810970, *2-4 (N.D. Ala. No. 5, 2012) (disallowing a Section 1940(4) 

(copies) request for “e-discovery costs” relating to e-discovery and database charges). Moreover, 

Austal has not sufficiently explained how this digital/electronic data was necessarily obtained for 

use in the case rather the convenience of counsel. See, e.g, Cadle, 2015 WL 4352048, *6

(“Defendant provides no explanation why it was necessary to obtain the transcript exhibits in this 

case....Therefore, it appears that Defendant obtained the transcript exhibits merely for its 

convenience, and thus may not recover the costs associated with the exhibits. Likewise, the costs 

for digital and condensed deposition transcripts, summaries, and shipping of the transcripts are 

not recoverable[]”); Zarra v. Sun Sentinel Co., 2013 WL 704770, *1 (S.D. Fla. Feb. 26, 2013) 

(internal citations omitted) (“[u]nless shown to be necessary...digital copies are not recoverable 

under 28 U.S.C. § 1920(2)...[b]ecause Defendant has not explained why the disputed charges 

were necessary rather than just convenient, those costs are not taxable against Plaintiffs[]”); 

Powell, 2010 WL 4116488, *19 (disallowing costs for file folder captures, scans into email, etc.). 

Thus, Austal’s request is DENIED.

2. Expert Witness

Austal seeks to recover $5,560.70 for its expert witness Dr. Dwight Steward, as necessary 

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to rebut Plaintiffs’ expert Dr. Bradley and “instrumental in securing the dismissal of Plaintiffs’ 

disparate impact claims and their withdrawal of Dr. Bradley’s opinions.” (Doc. 962 at 9-10

(citing Doc. 951-9 at 5)).

“The general rule in civil litigation in federal courts is that expert witness fees are not 

taxable as costs beyond the statutory per diem fee, mileage and the subsistence allowance 

provided for under 28 U.S.C. § 1821.” D.B. v. Orange Cty., Fla., 2015 WL 847293, *3 (M.D. 

Fla. Feb. 26, 2015). As enunciated in Kerns, 2007 WL 2710372, *2 (emphasis added):

...It is black-letter law that expert witness fees cannot be taxed as costs. See, e.g., 

Morrison v. Reichhold Chemicals, Inc., 97 F.3d 460, 463 (11th Cir.1996) (“we find that 

the district court erred in taxing as costs any amount for expert witness fees in excess of 

the $40 per day allowed under § 1821, and, upon remand, the district court should reduce 

the taxable costs accordingly”); L&W Supply Corp. v. Acuity, 475 F.3d 737, 741 (6th 

Cir.2007) (“we hold that expert witness fees may not be taxed as costs at a court's 

discretion under Rule 54(d) because § 1920 does not provide for them”); Walker v. 

Bozeman, 243 F.Supp.2d 1298, 1308 (N.D.Fla.2003) (“Expert witness fees (above the 

$40 daily attendance fee applicable to any witness ... ) are not recoverable.”)....

Additionally, pursuant to 28 U.S.C. § 1920(3), courts may tax costs for “fees and 

disbursements for ... witnesses.” Witness costs are set by 28 U.S.C. § 1821(b), through which 

“[a] witness shall be paid an attendance fee of $40 per day for each day's attendance. A witness 

shall also be paid the attendance fee for the time necessarily occupied in going to and returning 

from the place of attendance at the beginning and end of such attendance or at any time during 

such attendance.” In short, these costs are limited to witness payments of $40/day. PODS Ent., 

LLC v. U-Haul Int’l, Inc., 2015 WL 5021668, *1 (M.D. Fla. Aug. 24, 2015). Expenses for 

expert witnesses which exceed $40 per day (the statutory per diem fee), mileage and subsistence 

allowance under Section 1821 are not taxable. D.B., 2015 WL 847293, *3-4. Moreover, this 

Court’s Standing Order 13 provides “[n]o fees of expert witnesses in excess of the above 

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mentioned attendance, subsistence and travel fees shall be taxed.” Further, Dr. Steward was not 

a witness at trial such that even the $40/day cost is inapplicable. The expert witness costs Austal 

seeks then, fall outside those costs which Section 1920 permits, and are “clearly 

nonrecoverable.” Duckworth v. Whisenant, 97 F.3d 1393, 1399 (11th Cir. 1996); Kivi v. 

Nationwide Mut. Ins. Co., 695 F.2d 1285, 1289 (11th Cir. 1983) (“additional amounts paid as 

compensation, or fees, to expert witnesses cannot be allowed or taxed as costs in federal 

courts[]”). Finally, Austal’s characterization of the import of Dr. Steward’s expert report is 

unpersuasive as such is based on its own opinion rather than a ruling of this Court.14 Thus, 

Austal’s request is DENIED.

3. Mediation

Austal seeks recovery of $2,044.50 for mediation costs. (Doc. 951-9 at 2; Doc. 962 at 9-

10). Mediation costs are not recoverable under Section 1920. Nicholas v. Allianceone 

Receivables Mgmt., Inc., 450 Fed. Appx. 887, 888 (11th Cir. 2012); D.B., 2015 WL 847293, *5;

Tempay Inc. v. Biltres Staffing of Tampa Bay, LLC, 2013 WL 6145533,*6 (M.D. Fla. Nov. 21, 

2013); Lane, 2013 WL 1881298, *2. Thus, Austal’s request is DENIED.

4. Attorney Travel 

Austal seeks recovery of $1,197.27 for Thomas M. O’Hara, Esq.’s travel. (Doc. 951-9 at 

7-11; Doc. 962 at 9-11). Attorney travel costs are not taxable under 1920. Mock v. Bell 

Helicopter Textron, Inc., 456 Fed. Appx. 799, 802 (11th Cir. 2012); Gary Brown & Assocs., Inc. 

 14 Those plaintiffs who asserted disparate impact claims, voluntarily dismissed them (Doc. 365), which 

prompted this Court to cancel the scheduled Daubert hearing (at which time the Court would have assessed the 

merits and import of Dr. Steward’s report). 

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v. Ashdon, Inc., 268 Fed. Appx. 837, 845-846 (11th Cir. 2008); D.B., 2015 WL 847293, *5.

Thus, Austal’s request is DENIED.

III. Conclusion

Based upon the foregoing, it is ORDERED that Austal’s motion is GRANTED in part

and DENIED in part as follows: GRANTED in part as to the trial subpoenas as specified

herein, GRANTED as to the certified copies of state court records, GRANTED in part as to the 

deposition transcript costs and printing costs as detailed supra; and DENIED as to the costs for 

Pro Hac Vice admission, videotape/video-synching depositions, trial transcripts, 

email/electronic/digital data, expert witnesses, mediation, attorney travel, and all other deposition 

transcript and printing costs requested. Accordingly, Austal is entitled to a retaxed award of 

costs in the amount of $32,751.30 (comprised of $28,520.35 for deposition transcripts,15

$1,212.45 for witness fees,16 $230.00 for trial subpoenas, $177.50 for certified copies and 

$2,611.00 for printing costs).

DONE and ORDERED this the 5th day of November 2015.

/s/ Kristi K. DuBose 

KRISTI K. DuBOSE

UNITED STATES DISTRICT JUDGE

 15 The additional award of $23,542.10 plus the amount previously taxed by the Clerk.

16 Previously taxed by the Clerk.

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