United States District Court, District of Colorado
Kathleen M Tafoya United States Magistrate Judge.
This matter is before the court on “Plaintiff’s Itemized Costs Associated with Retaking Depositions of Steve Murphy and Paul Anderson” filed October 23, 2015 (“Cost Request #1”) [Doc. No. 76]. “Defendants’ Opposition to Plaintiff’s Itemized Costs Associated with the Retaking of the Depositions of Steven Murphy and Paul Anderson” was filed on November 4, 2014 [Doc. No. 79]. No Reply was filed.
Additionally, the court considers “Plaintiff’s Itemized Calculation of Costs & Fees Associated with Bringing Her Motion to Compel Documents On Defendants’ Privilege Logs in the District of Colorado” filed November 6, 2014 (Cost Request #2”) [Doc. No. 81]. “Defendants’ Response to Plaintiff's Itemized Calculation of Costs and Fees Associated with Motion to Compel Documents On Defendants’ Privilege Log” was filed on November 24, 2014 [Doc. No. 89] and “Plaintiff’s Reply in Support of Her Itemized Calculation of Costs and Fees Associated with Her Motion to Compel Documents On Defendants’ Privilege Logs” [Doc. No. 96] was filed on December 3, 2014. Both requests are ripe for review and ruling.
I. COST REQUEST #1
A. Costs Incurred for Re-Taking Depositions.
Plaintiff has submitted costs for the following categories of expenses for which they seek reimbursement: (1) Round trip train fare Washington D.C. to New York, New York and taxi at destination; (2) overnight hotel expenses May 11 and 12, 2014; (3) meal charges for the same time period; (4) court reporter fees and transcript for the Steve Murphy deposition; and (5) court reporter fees and transcript for the Paul Anderson deposition.
Defendants do not object to the expense of the round trip train travel for Mr. Levesque of $464.00. Defendants limit their objections to costs submitted which they claim would have been incurred by Plaintiff even if the attorney for Defendants had not wrongfully instructed the witness not to answer. As to the deposition of Mr. Murphy, Defendants argue that the cost of the one night’s hotel room would have been necessary in Ft. Lauderdale for the continuation of Mr. Murphy’s deposition because the deposition ended at 5:52 p.m.. Therefore, Mr. Levesque would have had to stay over one night in Ft. Lauderdale to complete the deposition of Mr. Murphy even if the objection had not been made. The same argument is made with respect to the overnight New York lodging to finish the deposition of Paul Anderson. Mr. Anderson’s first deposition ended at 6:52 p.m. so Defendants argue any additional testimony would, by necessity of the hour, have been taken the next day. Therefore, costs would have been incurred for an overnight stay in Trinidad to continue the original deposition. Dovetailing that argument, the Defendants also argue that meals for that additional day should also be excluded.
Additionally, Defendants argue that the costs for the transcripts of testimony and for exhibits would have been costs incurred in any event had the two depositions continued each into their second day. Further, they argue that costs for the additional hours with the court reporter would also have been incurred for the continuing the depositions in the first instance.
The court overrules the objection of Defendants to the two nights lodging which was incurred by Mr. Levesque. The Plaintiff’s attorney was unnecessarily forced to expend his attorney time to travel to New York to take the depositions. If the depositions had simply gone forward as scheduled and resumed the same day, the six hours that Mr. Levesque spent on the train would not have been necessary. Therefore, the court finds that the costs of the hotel that were incurred in New York were necessary and should be borne by the Defendants. However, the court does not accept the rate of $359.00 for the hotel room as submitted by Plaintiffs because the General Services Administration Per Diem Rate in May of 2014 for New York City lodging was a maximum of $267.00 per night. Of course counsel may stay wherever they like when traveling so long as their clients do not object to the cost. But when the costs are to be shifted, the court must determine what costs are reasonable. The court determines that the government per diem rate is the “reasonable” rate for a hotel in New York City at the time. Therefore the court will allow expenses of $534.00 for two nights lodging, plus city tax at .058% ($30.97) plus $4.00 New York City occupancy fee and New York City state tax of .924 ($49.34). Accordingly, lodging costs will be awarded in the total amount of $618.31.
The court will also allow meal expenses at the government per diem rate of $71.00 per day. Both May 11 and May 13, 2014 were half days. Therefore, the court will allow $142.00 in meal costs.
The court agrees with the defendants that the majority of the court reporter fees which were incurred would have been born by Plaintiff had not defense counsel interposed the instruction not to answer and concluded the deposition early. The hourly rate for the additional hours of testimony would have been incurred as would the costs of the videotapes and the transcript. The only additional costs which were incurred by Plaintiff appear to be the “first hour” fees, which this court likens to an “appearance fee” charged by the service simply to show up at the deposition site. Since such an appearance fee would have already been incurred at the beginning of the original depositions of Mr. Murphy and Mr. Anderson, those costs are additional. Therefore, the court will award $355.00 in extra court reporter costs.
Therefore the court orders that the Defendants shall pay to Plaintiffs the total sum of $1, 631.91 in extra costs incurred with respect to the need for continued depositions of Steve Murphy and Paul Anderson pursuant to the court’s October 20, 2014 Order [Doc. No. 75].
COST REQUEST #2
A. Costs and Fees Awarded as ...