United States District Court, S.D. Indiana, Indianapolis Division
IN RE METHOD OF PROCESSING ETHANOL BYPRODUCTS AND RELATED SUBSYSTEMS (‘858) PATENT LITIGATION
OPINION AND ORDER
L. MILLER, JR. JUDGE.
2016, the court entered judgment against the plaintiffs,
CleanTech Co. and GreenShift Corp., and in favor of the
defendants. Several defendants then filed bills of costs
pursuant to Federal Rule of Civil Procedure 54(d)(1). Those
bills of costs, and plaintiffs' objections them, are
before the court.
Federal Rule of Civil Procedure 54(d)(1)
Federal Rule of Civil Procedure 54(d)(1), costs “should
be allowed to the prevailing party." Rule 54(d)(1)
"provides a presumption that the losing party will pay
costs but grants the court discretion to direct
otherwise." Rivera v. City of Chi.,
469 F.3d 631, 634 (7th Cir. 2006). A court awarding costs
considers "whether the cost imposed on the losing party
is recoverable" and "if so, whether the amount
assessed for that item was reasonable." Majeske v.
City of Chi., 218 F.3d 816, 824 (7th Cir. 2000).
Recoverable costs include: (1) clerk and marshal fees, (2)
transcript fees, (3) witness fees and expenses, (4) fees for
copies of papers necessarily obtained for use in the case,
(5) docket fees, and (6) compensation for court-appointed
experts and interpreters. 28 U.S.C. § 1920(1)-(6). The
plaintiffs object that some of the requested costs aren't
recoverable, and that others aren't reasonable.
and GreenShift argue that the defendants shouldn't
recover any costs for the deposition transcripts, or in the
alternative, that the court should remove the costs of some
depositions and reduce the award for the remaining
depositions to the amount that reflects an appropriate per
page cost. They first contend that the defendants could have
shared the cost of transcripts with the other defendants, so
the court shouldn't award any costs for transcripts.
CleanTech and GreenShift have come forward with no authority
that requires defendants represented by separate attorneys to
share the cost of a transcript. The court finds that the
choice to independently order transcripts rather than
coordinate with other defendants was reasonable and
necessary. The plaintiffs also argue that no defendant
provided sufficient documentation relating to the transcripts
because the invoices don't separate out incidental
charges such as late fees, conference room costs, and court
reporter travel. Because the court thinks that the incidental
charges are necessary and reasonable, as explained later,
failure to separate those charges out from the cost of the
transcript doesn't make the documentation insufficient.
Deposition transcript of Charlie O'Brien
and GreenShift object to Aemetis, Inc., Aemetis Keyes,
Homeland, Pacific Ethanol, and Pacific Ethanol Stockton
recovering costs for the deposition transcript of Charlie
O'Brien because the transcript was ordered by all five of
the parties that Brown Winnick jointly represented. A choice
to order a separate transcript for each party represented by
the same attorney would be unreasonable and unnecessary. The
defendants responded that they had only ordered a single copy
of the transcript and the cost of that transcript was split
equally between the five clients. The defendants didn't
submit any documentation to demonstrate that they split the
cost of a single transcript, but the low cost reflects that
the defendants did split the cost. The court will tax the
total cost to the plaintiffs.
Deposition Transcript of Andrew Dorisio
and GreenShift object to Aemetis, Inc., Pacific Ethanol
Stockton, and Homeland recovering costs for the deposition
transcript of Andrew Dorisio because the transcript was
ordered by three parties that Brown Winnick jointly
represented. For the same reasons that it awarded the full
cost of the transcript of Mr. O'Brien's deposition,
the court will tax the full costs the transcript of Mr.
Copies of Transcripts of Other Deponents
and GreenShift argue that the defendants shouldn't be
able to recover costs for copies of depositions of the
executives of other defendants or their own employees. The
court doesn't agree. It was reasonable and necessary for
the defendants to understand the prospective testimony of the
executives of other parties to the suit. The court of appeals
has rejected the claim that it is unnecessary for a party to
obtain a transcript of its own employees' deposition.
See Cengr v. Fusibond Piping Sys., 135 F.3d 445, 455
(7th Cir. 1998). The court will tax the plaintiffs for both
of these categories of transcripts.
also object that ICM, Inc. shouldn't recover for the cost
of deposition transcripts of Stan Janson and Jim Leiting
because ICM didn't attach an invoice for the transcripts.
ICM provided documentation for the expense, so the court will
tax the plaintiffs for these transcripts.
Per Page Cost of Deposition Transcripts
and GreenShift next argue that the defendants' recovery
should be limited to $3.65/page for original certified
transcripts, and $0.90/page for certified copies. The
Judicial Conference has set a maximum rate for contract court
reporter services. The defendants maintain that, in the
Southern District of Indiana, the district court may award
costs for transcripts in excess of that maximum rate. The
court agrees that it has discretion to award costs at a rate
higher than the minimum, but finds that the per page cost
requested by the defendants isn't reasonable. The court
reduces the awards so that the cost per page is $3.65/page
for original certified transcripts, and $0.90/page for
responded to the plaintiffs' objection to the per page
cost by asserting that they calculated the cost wrong because
ICM ordered both an original transcript and a certified copy.
While some courts have allowed the prevailing party to
recover costs for multiple copies of the same deposition
transcript, see e.g. Chi. Bd. Options Exch., Inc. v.
Int'l Sec. Exch., LLC, No. 07 CV 623, 2014 U.S.
Dist. LEXIS 4701, at *9 (N.D. Ill. Jan. 14, 2014); others
have not, see e.g. In re Text Messaging Antitrust
Litig., No. 08 C 7082, 2014 U.S. Dist. LEXIS 121804, at
*24 (N.D. Ill. Sep. 2, 2014). Since ICM hasn't shown that
additional copies of the deposition transcripts were
necessary, the court won't tax them against the
also argues that CleanTech and GreenShift improperly removed
the indices from the page count when calculating the per page
rate. Courts in this circuit are split as to whether indices
are recoverable under § 1920. Some courts have taken the
position that indices “are an integral part of the
deposition transcript” and so are recoverable. See,
e.g., White v. City of Chi., No. 11 C 7802, 2015
U.S. Dist. LEXIS 36084, at *9 (N.D. Ill. Mar. 23, 2015).
Other courts have allowed recovery when the prevailing party
used the indices. See, e.g., Pope v. Espeseth, Inc.,
No. 15-cv-486-jdp, 2017 U.S. Dist. LEXIS 197559, at *2 (W.D.
Wis. Dec. 1, 2017). Still others have regarded indices as
unnecessary costs expended for the convenience of counsel.
See, e.g., Porter v. City of Chi., No. 8 C 7165,
2014 U.S. Dist. LEXIS 105232, at *6 (N.D. Ill. Aug. 1, 2014).
The court is persuaded that, generally, indices are ordered
for the convenience of counsel. Beyond citing to favorable
cases, ICM has provided no argument as to why indices were
reasonable and necessary in this case. The court won't
tax their costs on the plaintiffs.
Costs Incidental to the Depositions
and GreenShift contend that they shouldn't be taxed for
deposition services, but reasonable costs incidental to a
necessary deposition may be taxed against the losing party.
Finchum v. Ford Motor Co., 57 F.3d 526, 534 (7th
Cir. 1995). The court finds that apart from GEA's late
fees (discussed below), the incidental costs that the
defendants incurred are reasonable and recoverable.
courts in this circuit have declined to include late fees in
an award of costs. See Borom v. Town of
Merrillville, 857 F.Supp.2d 785, 790 (N.D. Ind. 2012);
Youngman v. Kouri, No. 16-cv-1005, 2018 U.S. Dist.
LEXIS 134235, at *4 (C.D. Ill. Aug. 9, 2018). GEA has offered
no explanation for the late fees, and the court finds that
the late fees aren't reasonable. The court won't tax
them against the plaintiffs.