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Gunchick v. Federal Insurance Co.

United States District Court, C.D. California

July 17, 2015

FEDERAL INSURANCE COMPANY; and DOES 1 through 20, inclusive, Defendants.


RONALD S.W. LEW, Senior District Judge.

Currently before the Court is Defendant Federal Insurance Company's ("Defendant" or "FIC") Motion for Discretionary Costs. Having reviewed the arguments pertaining this Motion, the Court NOW FINDS AND RULES AS FOLLOWS: The Court DENIES Defendant's Motion.


Federal Rule of Civil Procedure 54(d)(1) controls the award of costs. Fed.R.Civ.P. 54(d)(1). Rule 54(d)(1) provides that "costs shall be allowed to the prevailing party unless a federal statute, the rules, or a court directs otherwise." San Diego Police Officers' Ass'n v. San Diego City Emps. Ret. Sys., 568 F.3d 725, 741 (9th Cir. 2009). "[A] party in whose favor judgment is rendered is generally the prevailing party for purposes of awarding costs under Rule 54(d)." d' Hedouville v. Pioneer Hotel Co., 552 F.2d 886, 896 (9th Cir. 1977). While the prevailing party is entitled to taxable costs other than attorneys' fees, these costs are limited to the categories listed in 28 U.S.C. § 1920. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42 (1987); see also L.R. 54-3 (listing categories of taxable costs).

If a prevailing party files a Motion for an award of costs not governed by F.R.C.P. 54(d), these additional costs may be items taxable as costs under Local Rule 54-3. See C.D. Cal. R. 54-3 (listing categories of taxable costs). If a district court exercises its discretion to refuse to award costs, it must specify reasons for the denial. Subscription Television, Inc. v. S. Cal. Theatre Owners' Ass'n, 576 F.2d 230, 234 (9th Cir. 1978). Here, Defendant has applied for taxation of three discretionary costs not governed by Federal Rule of Civil Procedure 54: costs for reporter's transcripts; a videotaped deposition; and demonstrative aids used at trial.

A. Reporter's Transcript

Defendant FIC seeks a total of $6, 562.92 for reporter's transcripts. Mot. 3:3-4 (citing Tagarao Decl., ¶ 2). Accordingly, Defendant seeks fees as follows:

Local Rule 54-3.4 states that a prevailing party can collect "[t]he cost of the original and one copy of all or any part of a trial transcript, a daily transcript, or a transcript of matters occurring before or after trial, if requested by the Court or prepared pursuant to stipulation." C.D. Cal. R. 54-3.4. There is a general presumption to deny awards of costs for transcripts when they are not created through a court order or a stipulation; however, exceptions can be made "if the case is complex and the transcripts proved invaluable to both the counsel and the court." Andresen v. Int'l Paper Co., No. 2:13-cv-02079, 2015 WL 3648972, at *6-7 (C.D. Cal. Jun. 10, 2015) (quoting Dowd v. City of Los Angeles, 28 F.Supp.2d 1019, 1049 (C.D. Cal. 2014)). In order to determine whether transcripts are invaluable, the Court may examine the length of testimony, the complexity of the issues litigated, and the overall length of trial. Manildra Milling Corp. v. Ogilvie Mills, Inc., 76 F.3d 1178, 1184 (citing Manildra Milling Corp v. Ogilvie Mills, Inc., 878 F.Supp. 1427 (D.Kan. 1995)); see also Maris Distrib. Co. v. Anheyser-Busch, Inc., 302 F.3d 1027, 1225-26 (11th Cir. 2002) (holding that a trial's length and complexity usually carry a significant amount of weight when determining whether daily transcripts are "necessary" or merely for a party's convenience).

Here, no court order or stipulation mandated the preparation of the trial transcript; instead it was prepared for Defendant's convenience in highlighting what it describes as Plaintiff's "inconsistent" and "evasive" testimony. Reply 2:18-21. This trial over Plaintiff's claim of employment discrimination was neither particularly complex, nor, at five days, lengthy. While Defendant argues that the transcripts were in fact "invaluable" in preparing its closing argument, courts have distinguished between this mere convenience and actual necessity arising from extremely technical or lengthy trials. See Andresen, 2015 WL 3648972 at *6-7; see also Stimmel v. Morales, 2013 WL 6174684, at *1 (E.D. Cal. Oct. 30, 2013) (holding that daily transcripts were unnecessary because the four day trial was not complex or lengthy and because the daily transcripts primarily served to convenience the parties); but see Dowd v. City of Los Angeles, 28 F.Supp. 3d 1019, 1049 (C.D. Cal. 2014)(daily transcripts found to be invaluable and critical to the Court's management of the legislation as the Court required the parties to cite to specific piece of testimony when making evidentiary objections and arguing the proposed jury instructions); United States v. Atchinson, Topeka & Santa Fe Ry. Co., 2010 WL 2850907 (E.D. Cal. July 19, 2010) (daily transcripts found to be invaluable and costs incurred should be awarded in light of the complexity and length of the trial as the trial lasted twenty seven days, had dozens of witnesses, hundreds of exhibits, and extremely complex scientific testimony given by experts). Accordingly, Defendant has not overcome the presumption that these transcripts, because they were neither stipulated to nor ordered by the Court, should not be taxable.

B. Video Deposition

Defendant seeks a total of $1, 640.00 for Plaintiff's video deposition. Mot. at 5. It is noteworthy that Defendant recorded Plaintiff's deposition both stenographically and videographically. Local Rule 54-3.5 provides that costs incurred while taking oral depositions are taxable; however, this provision does not "includ[e] the cost of video taping or recording depositions unless otherwise ordered by the court." C.D. Cal. R. 54-3.5. In spite of this local rule, Defendant argues that 28 U.S.C. § 1920(2) implicitly permits taxation of the cost of video depositions if they are necessarily obtained for use in the case. Def.'s Reply 4:14-18 (citing Little Mitsubishi Motors N. Am., Inc., 514 F.3d 699, 702 (7th Cir. 2008). Even if this were the rule, however, the Court doubts that the video deposition was necessarily obtained given that Defendant likely could have highlighted-and did in fact highlight-inconsistencies in Plaintiff's testimony through paper deposition transcripts, which are taxable pursuant to Rule 54-3.5. Indeed, as discussed above, Defendant cites this very purpose in arguing that its transcript costs should be deemed taxable. In the same vein, the Court in Yeager v. Bowlin, 2010 U.S. Dist. LEXIS 24537, at *6-7 (E.D. Cal. Feb. 25, 2010), determined that for the purposes of awarding costs, a video deposition was not necessary when impeachment could have been conducted with a printed transcript. This Court finds similarly with respect to Defendant's request.

C. Demonstrative Aids

Defendant seeks an additional $21, 031.25 for graphical presentations used at trial-namely, slides it prepared for its closing argument. Tagarao Decl., ¶ 4. Pursuant to Local Rule 54-3.12, upon order of the court, maps, charts, and other demonstratives reasonably necessary to assist the jury or the court in understanding issues at trial may be taxed as costs. C.D. Cal. R. 54-3.12. 28 U.S.C. § 1920(4) provides that a court can tax costs for "[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case[.]" 28 U.S.C. § 1920(4). Here, Defendant has failed to justify how digital copies of exhibits amounting to $21, 035.25 were necessary. Defendant used these digital images in a slide show during its closing argument; however, as Plaintiff points out, forty-eight of the fifty slides were merely enlarged copies of exhibits already entered into evidence, and the other two were simple slides that do not seem to justify their high price tag. Defendant does not sufficiently explain the necessity of the enlargement that would justify over $20, 000 in costs. These slides did not contain complicated or technical information, diagrams, or blueprints for the jury's understanding. Accordingly, the Court opts not to award costs for these demonstratives. Defendant's Motion for Discretionary Costs is therefore DENIED in its entirety.


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