Opinion
03 Civ. 4885 (MGC), 03 Civ. 6236 (MGC).
July 16, 2008
KINGSLEY, KINGSLEY CALKINS, Attorneys for Plaintiff, Hicksville, New York, By: Steven P. Calkins, Esq.
CICHANOWICZ, CALLAN, KEANE, VENGROW TEXTOR, LLP, Attorneys for Defendants M/V Tupungato, Tupungato, Shipping Inc., and Third-Party Defendant Ultrabulk, S.A. Panama, New York, New York, By: Randolph H. Donatelli, Esq.
MAHONEY KEANE, LLP, Attorneys for Defendants F.H. Bertling Reedere GMBH, Bertling Logistics Pool, and Third-Party Defendant, Compania Sud Americana De Vapores, S.A., New York, New York, By: Garth Wolfson, Esq.
MEMORANDUM AND ORDER
Ferrostaal, Inc. ("Ferrostaal") sued defendants F.H. Bertling Reedere GmbH, Bertling Logistics Pool (collectively referred to as "Bertling"), and the M/V Tupungato under the Carriage of Goods by Sea Act, 46 U.S.C. § 1300 et seq., for damage to steel coils alleged to have occurred aboard the M/V Tupungato during an ocean voyage from Huachipato, Chile to New Orleans. Tupungato Shipping Inc. filed a statement of interest and answer on behalf of the M/V Tupungato (collectively referred to with Tupungato Shipping Inc. as the "Tupungato"). Tupungato and Bertling, the charterers of the Tupungato, filed a third-party complaint against another charterer, Compania Sud Americana de Vapores, S.A. ("CSAV"), which filed a second third-party complaint against yet another charterer, Ultrabulk, S.A. Panama ("Ultrabulk"). After a nine-day bench trial, judgment was entered for the defendants on July 25, 2006. The judgment was affirmed on appeal on April 3, 2007, and the Clerk taxed certain costs against Ferrostaal on June 1, 2007. Ferrostaal appeals from that award of costs.
DISCUSSION
The Clerk issued two bills of costs against Ferrostaal, one for $12,408.80 in favor of Bertling and CSAV, and the other for $11,802.95 in favor of Tupungato and Ultrabulk. Ferrostaal objects to the following assessed costs from those two bills.
1. Expedited Trial Transcript
Ferrostaal objects to having to pay a total of $10,562.40 ($5,281.20 on each bill of costs) for expedited copies of the trial transcript. Instead, it argues that the proper fee for the transcript should have been the then-standard $0.83 per page fee, which would amount to $1,217.61 total ($608.80 per bill).
Local Civil Rule 54.1(c)(1) for the U.S. District Courts for the Southern and Eastern Districts of New York provides that:
The cost of any part of the original trial transcript that was necessarily obtained for use in this court or on appeal is taxable. The cost of a transcript of court proceedings prior to or subsequent to trial is taxable only when authorized in advance or ordered by the court.
Local Civ. R. 54.1(c)(1) (emphasis added). Ferrostaal argues that the transcript was not necessarily obtained for use at trial, that it was only obtained for the convenience of the defendants, and that taking notes during trial would have sufficed.
Defendants cite to a few instances during the trial where they referenced the trial transcript, but that does not show that the transcript was necessarily obtained for use in court. "A party's use of a trial transcript during the course of trial does not mean that the transcript was necessarily obtained, and, indeed, daily transcripts of trial testimony are not customary." Carmody v. ProNav Ship Mgmt., No. 02-7158, 2004 U.S. Dist. LEXIS 16158, *5 (S.D.N.Y. Aug. 16, 2004) (internal quotation marks omitted) (expedited trial transcript not necessarily obtained for purposes of cross-examination and reference to the court's rulings at trial). "[I]t is not necessary for counsel to rely on a trial transcript when counsel can take notes during trial in order to prepare for cross examination and summation." Bucalo v. E. Hampton Union Free Sch. Dist., 238 F.R.D. 126, 129 (E.D.N.Y. 2006) (expedited trial transcript not necessarily obtained for purposes of summation and cross-examination in an eleven-day trial). "The mere convenience of possessing the trial transcript is insufficient to justify taxation of costs." Id. "[T]rial transcripts are rarely necessary for trials that are not particularly long or complex." Id. (internal quotation marks omitted). See also Yadav v. Brookhaven Nat'l Lab., No. 99-5602, 2004 U.S. Dist. LEXIS 15437, *5-10 (E.D.N.Y. Aug. 5, 2004) (expedited trial transcript not necessarily obtained for keeping track of exhibits, assistance in making objections, cross-examining witnesses, and moving for judgment as a matter of law in a seven-day trial, even if the court also used the transcript); Malloy v. City of New York, No. 98-5823, 2000 U.S. Dist. LEXIS 8673, *3 (E.D.N.Y. June 23, 2000) (court's use of expedited transcript does not show it was necessarily obtained for trial).
This trial was a nine-day bench trial that did not involve overly complex matters. See Ferrostaal, Inc. v. M/V Tupungato, Nos. 03-4885 03-6236, 2006 U.S. Dist. LEXIS 49070, *2 (S.D.N.Y. July 19, 2006). Accordingly, under Local Civ. R. 54.1(c)(1), the expedited trial transcript was not necessarily obtained, and its cost should not be taxed to Ferrostaal. The Clerk's bills of costs taxed to Ferrostaal shall be reduced by a total of $9,344.79, or $4,672.39 per bill, to reflect a total charge of $1,217.61, or $608.80 per bill, for the trial transcript.
2. Expedited Service Fee for the Transcript of the Deposition of Goren Babic
Ferrostaal objects to the fee taxed for the expedited transcription service for the deposition of Goren Babic. The Clerk billed Ferrostaal $347.10 for the costs incurred by defendants Bertling and CSAV, and $525.10 for the costs incurred by defendants Tupungato and Ultrabulk for the expedited transcription service.
Ferrostaal argues that the expedited service fee for the Babic deposition is not a taxable cost under Local Civ. R. 54.1(c)(2), which provides in part that "[u]nless otherwise ordered by the court, the original transcript of a deposition, plus one copy, is taxable if the deposition was used or received in evidence at the trial, whether or not it was read in its entirety." Defendants argue that this transcript was read into evidence at trial, which would make it a taxable cost. However, the cost to expedite may not have been necessary.
"The statutory standard for recovery of costs of transcripts, depositions, pretrial proceedings, or trials, is whether they were `necessarily obtained for use in the case'. . . ." In re Air Crash Disaster at John F. Kennedy Int'l Airport, 687 F.2d 626, 631 (2d Cir. 1982) (citing 28 U.S.C. § 1920(2) (4)). "Expedited transcripts . . . are considered `necessary' only if an impending deadline for [a dispositive] motion necessitates such expedition." Gottlieb v. Simon, No. 97-1019, 1999 U.S. Dist. LEXIS 16926, *2 (S.D.N.Y. Nov. 1, 1999). The deposition was taken fourteen days before the joint pre-trial order had to be submitted. Defendants contend that the transcript had to be expedited to meet that deadline. Ferrostaal does not argue that the deposition could have been scheduled earlier to avoid having to expedite the transcript. See id. at *3 (denying some deposition costs and noting that defendants should have scheduled those depositions earlier). Because the deposition transcript was expedited in order to meet the deadline for the joint pre-trial order, the costs for that expedition were properly taxed.
3. Transcript Fees for the Depositions of James McNulty and Michael Goodnight
Ferrostaal objects to the costs billed for the depositions of James McNulty and Michael Goodnight, which were $1,991.20 and $2,040.40 respectively ($995.60 and $1,020.20 respectively on each bill of costs). It argues that those two depositions were taken solely for discovery purposes. Local Civ. R. 54.1(c)(2) states, inter alia, that "[c]osts for depositions taken solely for discovery are not taxable." In addition, Ferrostaal notes that the invoices for those transcripts include one original plus three copies. Under Local Civ. R. 54.1(c)(2), only the original transcript plus one copy is taxable.
Defendants provide evidence that the transcripts were used for impeachment during trial. Local Civ. R. 54.1(c)(2) provides for taxation of costs if "the deposition was used or received in evidence at the trial." Defendants also contend that three copies were required because the original and one copy went to Ferrostaal, as McNulty and Goodnight were plaintiff's witnesses. Thus, they argue that there was no extra charge for the copies because they only received two copies, and the reporter's invoice did not include a separate charge for any extra copies.
Since the deposition transcripts were used at trial, and since it appears that no extra copies were charged, these items of costs were properly billed to Ferrostaal.
4. Transcript Fee for the Deposition of Steve Drobny
Ferrostaal argues that it is being charged for two extra copies of the transcript of the deposition of Steve Drobny, another one of Ferrostaal's witnesses. The total fee charged for the transcript was $1,778.00, or $889.00 on each bill of costs. Defendants argue that, as with the McNulty and Goodnight deposition transcripts, no extra amount was charged since Ferrostaal received the original and one copy of that transcript and the defendants received the other two copies. Accordingly, this item of costs will not be reduced.
5. Expedited Service Fee for the Transcript of James McNulty's Second Deposition
Ferrostaal appears to object to the cost of expediting the transcript of a second deposition of James McNulty, taken in September of 2005 (the first deposition was taken in May of 2005). That charge of $579.15 was only included on the Bertling and CSAV bill of costs. None of the parties make specific arguments for or against imposition of this cost. Because the second deposition was requested by Ferrostaal, this item of costs will not be reduced.
6. DVD Copy Fee for James McNulty's Second Deposition
Ferrostaal objects to the $373.50 fee submitted by defendants Bertling and CSAV for a DVD copy of a video recording of McNulty's second deposition in September of 2005. Ferrostaal argues that a DVD copy is not an authorized transcript cost allowable under Local Civ. R. 54.1(c)(2). Defendants argue that the deposition was recorded at Ferrostaal's insistence and that, because it was not clear at the time of the deposition that Ferrostaal would produce McNulty at trial, defendants proceeded with the video recording in case they had to use video of McNulty's testimony at trial.
The objection here is to the cost of burning the DVD. Ferrostaal argues that the DVD is not a proper cost of a copy under Local Civ. R. 54.1(c)(2). See, e.g., Walther v. Maricopa Int'l Inv. Corp., No. 97-4816, 1999 U.S. Dist. LEXIS 15812, *8 (S.D.N.Y. Oct. 12, 1999). Defendants argue that video copies have been taxed as allowable costs by other courts. See, e.g., Tilton v. Capital Cities/ABC Inc., 115 F.3d 1471, 1477 (10th Cir. 1997) (affirming assessment of costs of videotaping and one copy of a deposition transcript). Under the circumstances of this case, where Ferrostaal requested the video recording and there was an expectation among the parties that the video of the testimony might be presented at trial, the billing of the cost of the DVD to Ferrostaal is proper.
7. NOAA Weather Records
Defendants Bertling and CSAV seek $63.50 from Ferrostaal, which they argue represents half the cost of obtaining weather records from the NOAA. Ferrostaal argues that the NOAA weather the deposition. Defendants have already paid his $1,000 per diem expert fee for that deposition, but they object to paying these other costs.
Ferrostaal contends that the additional preparation time and travel fees should be payable under Fed.R.Civ.P. 26(b)(4)(C)(i), which provides that "[u]nless manifest injustice would result, the court must require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery pursuant to Rule 26(b)(4)(A) or (B)." Ferrostaal argues that this provision includes costs related to travel and preparation time.
At a status conference on April 29, 2005, in reference to McNulty's fee, I ruled that "[plaintiff] should bring him to New York and [defendant] will pay his fee." Thus, Ferrostaal should pay for the travel costs, and defendants should pay the fees for deposition preparation and the deposition itself. Accordingly, the $1,012.50 preparation fee should be shared by the defendants and will be set off from each bill of costs in the amount of $506.25.
CONCLUSION
For the foregoing reasons, the Clerk is directed to reduce the Bertling and CSAV bill of costs from $12,408.80 to $7,676.91, and the Tupungato and Ultrabulk bill of costs from $11,802.95 to $7,130.56. The bills of costs as determined by the Clerk are otherwise approved. Ferrostaal may subtract an additional $506.25 from the total of each bill of costs when making its payments to defendants to reflect the set-off for McNulty's deposition preparation fees. Thus, in satisfaction of the bills of costs, Ferrostaal is to pay $7,170.66 to Bertling and CSAV, and $6,624.31 to Tupungato and Ultrabulk.
SO ORDERED.