In re Method of Processing Ethanol Byproducts and Related Subsystems ('858) Patent Litigation

          OPINION AND ORDER

          ROBERT L. MILLER, JR. JUDGE.

         In 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.

         Discussion

         I. Federal Rule of Civil Procedure 54(d)(1)

         Under 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.

         II. Depositions

         CleanTech 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.

         A. Deposition transcript of Charlie O'Brien

         CleanTech 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.

         B. Deposition Transcript of Andrew Dorisio

         CleanTech 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. Dorisio's deposition.

         C. Copies of Transcripts of Other Deponents

         CleanTech 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.

         They 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.

         D. Per Page Cost of Deposition Transcripts

         CleanTech 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 certified copies.

         ICM 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 plaintiffs.

         ICM 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.

         E. Costs Incidental to the Depositions

         CleanTech 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.

         F. Late fee

         District 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.

         G. ...