ORDER
The defendant in this age discrimination case requested the clerk to tax the following costs against the unsuccessful plaintiffs:
Fees for witnesses $1,035.00
Fees for exemplification and 1,232.25 copies of papers necessarily obtained for use in case
Docket fees under 28 U.S.C. § 77.50 1923
Costs incident to taking of 2,218.05 depositions
Costs of videotaping and playback 644.63 of deposition of L.O. Walser
LEXIS research . 1,242.43
TOTAL $6,449.43
The plaintiffs object to the inclusion of the following items in the taxation of costs: the expense of computer-assisted legal research (LEXIS), the charges for photocopying (which are given only as monthly totals), the expense of videotaping a deposition and showing the videotape at trial, the actual airline fare of a witness traveling a distance greater than 100 miles to the place of trial, and the amounts for certain depositions. This court is authorized under Rule 54(d) of the Federal Rules of Civil Procedure to review the clerk’s taxation of costs and will consider each of the plaintiffs’ objections separately.
A. Computer-Assisted Legal Research
As justification for its submission of its LEXIS time in this matter, the defend
It is vital that courts distinguish the categories of costs and attorney’s fees. A distinctive characteristic of American litigation is that each party must pay its own attorney’s fees, often a hefty sum, although the successful party may shift its costs, traditionally an insignificant sum, to the unsuccessful party. Numerous policies may underlie the American rule, see, e.g., Dowdell v. City of Apopka,
In keeping with the American approach, federal courts award attorney’s fees only if they are specifically authorized by statute and award costs sparingly. Costs are awarded under the authority of Rule 54(d), Federal Rules of Civil Procedure but also within the constraints of 28 U.S.C. § 1920 which provides:
A judge or clerk of any court of the United States may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers 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.
The restraint a judge should use in characterizing a possible item as a taxable “cost” within one of the categories of section 1920 was described by Mr. Justice Black as follows:
We do not read that Rule [Rule 54(d) ] as giving district judges unrestrained discretion to tax costs to reimburse a winning litigant for every expense he has seen fit to incur in the conduct of his case. Items proposed by winning parties as costs should always be given careful scrutiny. Any other practice would be too great a movement in the direction of some systems of jurisprudence that are willing, indeed if not anxious, to allow litigation costs so high as to discourage litigants from bringing lawsuits, no matter how meritorious they might in good faith believe their claims to be. There*114 fore, the discretion given district judges to tax costs should be sparingly exercised with reference to expenses not specifically allowed by statute. Such a restraint in administration of the Rule is in harmony with our national policy of reducing insofar as possible the burdensome cost of litigation.
Farmer v. Arabian American Oil Co.,
In the interest of clarity, this court notes that this decision is made in the ordinary context of the American rule, where costs but not attorney’s fees are recoverable. There are several cases, in addition to Friedlander v. Nims, which hold that when the successful litigant is entitled only to his costs under 28 U.S.C. § 1920, computer-assisted legal research is not includable as such a cost. Wolfe v. Wolfe,
To further clarify its holding, the court notes that it is unnecessary in resolving the case sub judice to decide whether the expense of computer-assisted legal research may be included in an award for attorney’s
This Court, by reaching the same result as Wolfe, Guinasso, and Friedlander, does not endorse those statements. First, since this court is reviewing a bill of costs submitted by a party who was entitled only to costs and not to attorney’s fees, once the court determined that computer-assisted legal research did not fit in any cost category, the item was disallowed. Any statements discussing the attorney’s fees category would be dicta. Second, this court is not convinced that these statements are-sound in comparing the use of a LEXIS terminal by a lawyer to the use of a word processing equipment by a legal secretary or in comparing the expense for time used in on-line computer research to the expense of maintaining a traditional law library. The cost of the secretary’s salary and the maintenance of the library are necessarily included in the attorney’s hourly fee as a constant, static component of overhead, but as the charges for LEXIS time increase on a legal matter, the attorney’s billable hours for that research should decrease. It is conceivable that the relationship of LEXIS time to attorney time is inverse rather than direct. A court with the factual basis of these comparisons before it, see e.g., United Nuclear Corporation v. Cannon,
B. Photocopying Charges
In support of the defendant’s request for $1,232.25 as “fees for exemplification and copies of papers necessarily obtained for use in case,” the defendant attached as Exhibit D to its bill of costs a monthly breakdown of its “Reproduction Costs.” The plaintiff has objected to the charge for photocopying expense because this exhibit does not reflect the cost per page nor does it indicate which photocopies were necessarily obtained for use in the case. The court will defer ruling on the photocopying expense until the defendant’s counsel certifies that the submission includes only “copies of papers necessarily obtained for use in the case” as required by 28 U.S.C. § 1920(4) and notifies the court of the charge per page used in Exhibit D. In identifying for the court the photocopying costs that are taxable under section 1920, the plaintiff may include charges attributable to discovery, see Independent Tube Corp. v. Copperweld Corp.,
C. Expense of Videotaping Deposition of L.O. Walser
The defendant presented a $600 charge for its videotaping of a deposition of a witness who would not be available at trial. The defendant contends that the taping took place upon the agreement of counsel. However, a better characterization might be that plaintiffs’ counsel consented to the decision.of defendant's counsel to preserve the testimony of a witness in a more effective, although more expensive, manner. The court finds that the cost of this videotape fits most appropriately under subsection (3) as a variant form of a witness fee, and the fee recovered for this videotaped testimony will be limited, as are other witness fees, by 28 U.S.C. § 1921, to $30.00 per diem.
D. Travel Expenses of Witness from Distance Greater Than 100 Miles
Plaintiff objected to the submission of travel expenses for Mr. D.W. Rosenberg who flew from hiis residence in New Jersey to Atlanta to testify at the trial. Plaintiff argues that travel expenses should not be allowed for any witness brought in from beyond the effective territorial limit of the subpoena. It is within the discretion of a trial court to include in taxable costs the travel expenses of witnesses who come from outside the 100 mile range of subpoena power as established by Rule 45(e). See Dasher v. Mutual Life Insurance Company of New York,
E. Amounts for Certain Depositions
The defendant has submitted expenses for sixteen depositions. The plaintiffs challenge the allowance of copies of depositions for witnesses who were not called to testify at trial (four of the sixteen people who were deposed actually testified) and of depositions not used to support the defendant’s motion for summary judgment (five depositions were submitted with that motion). The defendant argues only that it used all sixteen depositions extensively; it does-not show the necessity of the depositions. The court finds that only two depositions were necessary. The deposition of Mr. A.W. Wolff was actually introduced at trial. In addition, the court will allow the expense of the stenographic transcript of the deposition of Mr. L.O. Walser. Mr. Walser’s deposition was introduced at trial by showing the videotape rather than by reading from the transcript, but the court finds that due to the unwieldy nature of the videotape medium, the written transcript was reasonably necessary for the attorneys’ preparation.
F. Summary
The court hereby DISALLOWS the defendant’s submission of its computer-assisted legal research expenses, ALLOWS the cost of preserving and showing the videotape of the testimony of Mr. L.O. Walser, but only to the extent of the standard witness fee of $30 per diem, ALLOWS the actual airline fare of Mr. D.W. Rosenberg, ALLOWS the cost of the depositions of Mr.
In conclusion, after adjustment of the cost figures submitted by the defendant, the following amounts are ALLOWED:
Fees for witnesses (including an adjustment of $30 for the witness fee for Mr. L.O. Walser) $1,075.00
Fees for copies (to be determined)
Docket fees Costs incident to taking of depositions of Mr. A.W. 77.50
Wolff and Mr. L.O. Walser 417.90
Counsel for the defendant is hereby ORDERED to provide the court with a more detailed submission of its photocopying expense within 20 days from the date of this order.
ON CERTIFICATION AND MOTION FOR RECONSIDERATION
On September 7, 1984, this court reviewed the bill of costs submitted by the successful defendant in this age discrimination case. The court deferred ruling on one item, the amount that would be awarded under 28 U.S.C. § 1920(4) as fees for “exemplification and copies of papers necessarily obtained for use in the case.”
I. Certification by Attorneys of the Remaining Item in Bill of Costs
The defendant’s attorneys previously submitted a $1232.25 figure based only on monthly photocopying totals. Upon this court’s request, the defendant’s attorneys have now submitted a detailed explanation of this photocopying expense, certifying that their calculations are based on a 15c per page rate and including the following items:
Pleadings, exclusive of jury charges:
301 X 2 = 602
Jury charges:
59 X 3 = 177
Trial exhibits:
91 X 1 = 91
Discovery pleadings:
104 x 1 = 104
The attorneys sought to justify their multiplication by explaining that they made one service copy and one duplicate filing copy (as required by Local Rule 151.4) of all pleadings except jury charges and that they made a service copy and two duplicate filing copies of jury charges (as required by Local Rule 201.1). Local Court Rule 151.5, regarding the filing of pleadings, is worded differently than Local Court Rule 201.1, on the preparation of Requests to Charge, with the first rule referring to duplicate copies and the latter rule referring to triplicate copies, but the effect is the same. Attorneys are required under both rules to supply an original for the court, a duplicate for the clerk, and a service copy for the opposing attorney. Therefore, the jury charges, just as the pleadings, should be multiplied by two. With that adjustment to their calculations, the attorneys have certified the necessity of 915 pages. The court hereby ALLOWS $137.25 for the photocopying item in the bill of costs.
II. Request for Reconsideration or Clarification
The defendant has requested reconsideration or clarification of two points in the September 13, 1984, order: (1) the allowance of reimbursement only for the copies of pleadings. and trial exhibits filed with the court but not for copies retained by counsel and (2) the allowance of reimbursement for two depositions tendered into evidence at trial but not for five depositions used in connection with the defendant’s successful motion for summary judgment.
A. Disallowance of Reimbursement for Copies of Pleadings and Exhibits Retained by Counsel
The defendant cites United States v. Kolesar,
Photocopying charges attributable to discovery and the court’s copies of pleadings, motions, and memoranda are “reasonable necessary for use in the case” and can be awarded. Extra copies of filed papers and correspondence, and copies of cases, however, are not necessary but are for the convenience of the attorneys and therefore not taxable.
Independence Tube Corp. v. Copperweld Corp.,
B. Disallowance of Reimbursement for Costs of Depositions Not Adequately Identified as Necessary for Motion for Summary Judgment
In the previous order, this court awarded the costs of two depositions which were tendered into evidence at the trial. The court’s allowance of the costs of those two depositions does not mean, as suggested in the defendant’s motion for reconsideration, that this court would not award the costs of depositions used in supporting a successful motion for summary judgment. Such an award is appropriate when the attorneys can point to the use of the depositions with some particularity. Considering, however, the strong policy of the American system against the shifting of litigation expenses, a general statement by the attorneys that the parties and the court relied on five depositions for an order granting summary judgment is not sufficient; the party seeking reimbursement must show how the depositions were necessary for the court’s disposition of the motion. This court’s ruling, therefore, was consistent with Jeffries v. Georgia Residential Finance Authority,
In summary, the defendant’s motion for reconsideration is hereby DENIED, and the court hereby ALLOWS $137.25 for photocopying expense under 28 U.S.C. § 1920(4). This court’s .review of the bill of costs is now complete and the items, as allowed in this order and the previous order, may now be included in the judgment.