IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DUANE ALSIP as Administrator 

and Personal Representative of 

the Estate of Emma Alsip,

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Plaintiff,

vs. CIVIL ACTION NO. 14-476-CG-N

WAL-MART STORES EAST, LP 

and SOVEREIGN COMMERCIAL 

MAINTENANCE COMPANY, LLC

Defendants.

ORDER

This matter is before the Court on a motion to re-tax costs by Defendant WalMart Stores East, L.P. (“Defendant”). (Doc. 122). The clerk taxed costs in the 

amount of $1,114.43 for witness fees, copy costs, and travel costs related to the 

deposition of Plaintiff’s expert. (Doc. 116). Defendant moves to re-tax costs to 

include costs for depositions and copy costs in the amount of $5,776.32. (Doc. 122). 

For the reasons set forth herein, the Court finds that Defendant can recover some, 

but not all, costs associated with deposing the witnesses in this case and can recover 

the copy costs incurred in this case. Accordingly, Defendant’s Motion to Re-Tax 

Costs is due to be granted in part and denied in part.

“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) (citing United States v. Kolesar, 313 F.2d 835 (5th Cir. 

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1963)). However, in exercising its discretion to tax costs, absent explicit statutory 

authorization, federal courts are limited to those costs specifically enumerated in 28 

U.S.C. § 1920. Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 445 (1987).

The word “costs” is not synonymous with “expense.” Eagle Ins. Co. v. Johnson, 982 

F. Supp. 1456, 1458 (M.D. Ala. 1997). “[E]xpense includes all the expenditures 

actually made by a litigant in connection with the lawsuit.” Id. (citation omitted). 

“Whereas the costs that the district court may award under Rule 54(d)(1) are listed 

in 28 U.S.C.A. § 1920, and a district court may not award other costs or exceed the 

amounts provided in § 1920 without explicit authorization in another statutory 

provision.” Id. (citation omitted). Thus, the costs will almost always be less than 

the total expenses associated with the litigation. Id. (citation omitted).

The court's power to tax costs is grounded in part in Federal Rule of Civil 

Procedure 54(d)(1), which states: “Unless a federal statute, these rules, or a court 

order provides otherwise, costs - other than attorneys’ fees - should be allowed to 

the prevailing party.” Fed. R. Civ. P. 54(d)(1). Rule 54(d) gives rise to a 

presumption that costs will be awarded, and the party opposing the award must 

overcome this presumption. Manor Healthcare Corp. v. Lomelo, 929 F.2d 633, 639 

(11th Cir. 1991); see also Monelus v. Tocodrian, Inc., 609 F. Supp. 2d 1328, 1333 

(S.D. Fla. 2009) (“When challenging whether costs are taxable, the losing party 

bears the burden of demonstrating that a cost is not taxable[.]”). Section 1920 of 

Title 28 authorizes a judge or clerk of court to tax six items as costs:

(1) Fees of the clerk and marshal;

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(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 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. A court may not award costs that exceed those permitted by § 

1920. See Glenn v. Gen. Motors Corp., 841 F.2d 1567, 1575 (11th Cir. 1988).

Defendant requests certain deposition costs in the amount of $4,908.50 be 

taxed against Plaintiff for eleven different depositions. (Doc. 122, pp. 1–2; Doc. 115-

1, pp. 1–4). Plaintiff filed no objection to these costs. Section 1920(2) authorizes the 

award of costs for deposition transcripts. 28 U.S.C. § 1920 (2); see Kolesar, 313 F.2d 

at 837–38 (“Though 1920(2) does not specifically mention a deposition, ... 

depositions are included by implication in the phrase ‘stenographic transcript.’”). 

Whether the costs for a deposition are taxable depends on “whether the deposition 

was wholly or partially ‘necessarily obtained for use in the case.’” E.E.O.C. v. W & 

O, Inc., 213 F.3d 600, 621 (11th Cir. 2000) (quoting Newman v. A. E. Staley Mfg. 

Co., 648 F.2d 330, 337 (5th Cir. Unit B 1981)). “[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 

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(M.D. Fla. Feb. 21, 2007). Taxable deposition costs extend to per diem charges, 

Procaps v. Patheon Inc., 2016 WL 411017, at *3 (S.D. Fla. Feb. 2, 2016), and exhibit 

copies “produced for the purpose of supplementing the depositions on which the 

court relied in granting summary judgment,” Kidd v. Mando Am. Corp., 870 F. 

Supp. 2d 1297, 1299 (M.D. Ala. 2012).

But not all deposition costs are taxable. “Where the deposition costs were 

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

investigation only, the costs are not recoverable.” E.E.O.C., 213 F.3d at 620

(citation omitted). This means that a prevailing party generally cannot recover 

costs for both ordinary transcripts and condensed transcripts or other duplicate 

forms of a transcript. Preis v. Lexington Ins. Co., 2007 WL 3120268, at *4 (S.D. Ala. 

Oct. 22, 2007) (“such duplication is for the convenience of counsel and is not 

taxable”). “Similarly, § 1920 does not authorize recovery of costs for shipment of 

depositions or costs for binders, tabs, and technical labor.” Watson v. Lake City, 

492 F. App’x 991, 997 (11th Cir. 2012). And the added expense of an expedited 

transcript or a rough transcript is not taxable unless “the transcript is 

indispensible.” Bumpers v. Austal U.S.A., L.L.C., 2015 WL 6870122, at *5 n.7 (S.D. 

Ala. Nov. 6, 2015.

Each deposition for which the defendant requests costs be re-taxed was an 

exhibit submitted to the Court with Defendant’s summary judgment motion, which 

reasonably makes them necessary for use in this case. The depositions of Quinn 

Schratz, Billy Wallace, and Russell Kendzior also had exhibits associated with 

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them. Some of these exhibits were produced for the Court to decide Defendant’s 

summary judgment motion, which reasonably makes the exhibits necessary for use 

in this case.

Additionally, the deposition of Kendzior has the added cost for the transcript 

being expedited. See (Doc. 122-1, p. 3). The cost of the expedited transcript was 

$1,440.00. Id. This brought Kendzior’s total transcript copy cost to $3,060.00. 

Defendant propounds that this added cost is necessary because Kendzior, Plaintiff’s 

expert, was not deposed until nine days before Defendant was required to disclose 

its rebuttal expert under Federal Rule of Civil Procedure Rule 26(a)(2)(D), although 

Defendant offered dates much earlier. (Doc. 115-1, p. 3). The Court agrees that the 

added cost was necessary. A copy of Kendzior’s transcript was indispensible to 

Defendant in determining whether to retain or not retain a rebuttal expert before 

the disclosure deadline. The fact that Defendant sought a seven-day extension to 

the disclosure deadline days later does not change the necessity of this additional 

cost. See Barrera v. Weiss & Woolrich Southern, 900 F. Supp. 2d 1328, 1335 (S.D. 

Fla. 2012) (finding depositions taken within thirty days of a deadline justify 

expedited transcript costs).

A review of the deposition invoices submitted show costs that cannot be 

taxed, such as charges for transcript duplicates, travel versions, postage, exhibits 

not used in the summary judgment motion, and other non-taxable costs. But for the 

most part, Defendant already reduced the amount requested based on these nontaxable costs. Therefore, the cost of the depositions requested by Defendant is taxed 

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against Plaintiff with the following exceptions:

(1) Emma Alsip: $ 368.50, which is the cost of the transcript 

plus 1/2 day per diem less $4.90 in exhibit charges for 

unused exhibits; and 

(2) Billy Wallace: $381.95, which is the total amount of the

transcript and exhibits.1

The total amount of deposition costs to be re-taxed against Plaintiff is $4,906.60.

Photocopying costs are included in § 1920(4). In determining whether to 

award copying costs, “the court should consider whether the prevailing party could 

have reasonably believed that it was necessary to copy the papers at issue.” EEOC, 

213 F.3d at 623. Costs associated with producing documents in discovery are 

taxable. Id. Medical records subpoenaed duces tecum and courtesy copies supplied 

to the court are also taxable. Crouch v. Teledyne Cont’l Motors, Inc., 2013 WL 

203408, at *20, *30 (S.D. Ala. Jan. 17, 2013). Defendant’s counsel declares that the 

copying costs and medical records subpoenaed were “necessarily incurred” for use in 

this case for discovery or supplied to the Court as a courtesy copy under Local Rule 

of Civil Procedure 7(g). (Doc. 115-1, pp. 5–6). Plaintiff filed no objection to these 

costs. The Court finds that the copy and medical records costs totaling $867.82 

were necessary and therefore are recoverable.2

Given this, Defendant’s Motion to Re-Tax (Doc. 122) is GRANTED in the 

amount of $6,859.99 ($1,114.43 taxed by the clerk and $5,745.56 additional re-taxed 

 1 Defendant asks for a total of $378.50 for Billy Wallace deposition costs, which does 

not equal the total of the transcript cost ($356.40) and exhibit cost ($25.55) 

requested.

2 This amount includes the $28.86 already taxed by the clerk for copies.

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by the Court). The motion is DENIED to the extent that Defendant sought to 

recoup the costs of the exhibits from Emma Alsip’s deposition.

DONE and ORDERED this 31st day of October, 2016.

/s/ Callie V. S. Granade

SENIOR UNITED STATES DISTRICT JUDGE

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