#### BURNHAM CHEMICAL CO. v. BORAX CONSOLIDATED, LIMITED, et al.

No. 24948.

District Court, N. D. California, S. D.

June 5, 1947.

*342Sterling Carr, of San Francisco, Cal., for plaintiff.

Maurice E. Harrison, Moses Lasky and Brobeck, Phleger & Harrison, all of San Francisco, Cal., and Paul Sanmeyer and Newlin, Holley, Sandmeyer & Coleman, all of Los Angeles, Cal., for defendants Borax Consolidated, Ltd., Pacific Coast Borax Co., and United States Borax Co.

Oliver & Donnally, of New York City, William J. Froelich, of Chicago, 111., Charles A. Beardsley, of Oakland, Cal., and Philip M. Aitken, of Lincoln, Neb., for defendant American Potash & Chemical Corporation.

GOODMAN, District Judge.

After judgment in favor of defendants in this case, the defendant American Potash & Chemical Corporation filed with the clerk its cost bill totaling $395.75; and defendants Pacific Coast Borax Company, United States Borax Company and Borax Consolidated, Limited, filed with the clerk its cost bill totaling $667.40.

The clerk taxed the costs of American Potash & Chemical Corporation at $237.75, after disallowing the sum of $158 representing the cost of a copy of the deposition of G. B. Burnham. The clerk disallowed the same item appearing in the cost bill of defendants Pacific Coast Borax Company, United States Borax Company and Borax Consolidated, Limited, and also disallowed an item of $79 representing, “Reporters charge for certified portion of deposition of G. B. Burnham filed in support of motion to compel answers to questions and production of documents.” Over plaintiffs protest, the clerk allowed the item of $163.65 appearing in the cost bill of these defendants, representing “cost of exemplification and copies of other papers necessarily obtained for use in case as per Exhibit B attached,” and taxed their costs at $430.40.

All parties having appealed instanter, pursuant to Rule 9(e) of the Rules of Practice of this District, from the decision of the clerk taxing the costs, it is ordered:

1. That the clerk’s taxation of the costs of defendants Pacific Coast Borax Company, United States Borax Company, and Borax Consolidated, Limited, at $430.40 is affirmed.

The item of $79 representing reporter’s charge for certified portion of deposition of G. B. Burnham filed in support of motion to compel answers to questions and production of documents is disallowed said defendants for the reason that it does not appear that the refusal to answer was without substantial justification. Rule 37(a), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.

The item of $158 representing copy of deposition of G. B. Burnham is disallowed said defendants for the reason that it was not necessarily obtained for use at the trial, Title 28 U.S.C.A. § 830, but rather for the convenience of counsel in preparation for trial. Pine River Logging Co. v. United States, 186 U.S. 279, 297, 22 S.Ct. 920, 46 L.Ed. 1164; The William *343Branfoot, 4 Cir., 52 F. 390, 395. Since the matter of the allowance as taxable costs of expenditures for exemplifications and copies of papers is covered by Federal Statute, 28 U.S.C.A. § 830, the provisions of State Law, Cal. C.C.P. § 1032(a), are inapplicable. Ex parte Peterson, 253 U.S. 300, 316, 40 S.Ct. 543, 64 L.Ed. 919; Henkel v. Chicago, etc., Ry. Co., 284 U.S. 444, 52 S.Ct. 223, 76 L.Ed. 386; Wooster v. Handy, C.C.N.Y., 23 F. 49, 60. Even were the state law here applicable, the court would nevertheless in the exercise of the discretionary power as to costs vested in it by Rule 54(d), F.R.C.P., still be impelled to disallow the cost of a copy of the deposition in view of the practice in this district of opening the original deposition as soon as filed and permitting inspection. Rule 18, Rules of Practice District Court, Northern District of California.

The cost of photostatic copies of documents and exhibits is allowed said defendants inasmuch as it appears that the originals thereof were documents not in the possession of defendants and photostats thereof were necessarily obtained for use in the case.

2. That the clerk’s taxation of costs of defendant American Potash & Chemical Corporation in said action at $237.75 is affirmed.

The item of $158 representing copy of •deposition of G. B. Burnham is disallowed said defendant for the reasons stated above.