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TCR Sports Broadcasting Holding, LLP v. Cable Audit Associates, Inc.

United States District Court, D. Colorado

March 31, 2016

TCR SPORTS BROADCASTING HOLDING, LLP d/b/a MID-ATLANTIC SPORTS NETWORK, Plaintiff,
v.
CABLE AUDIT ASSOCIATES, INC. d/b/a MEDIA AUDITS INTERNATIONAL, Defendant.

ORDER ON MOTION TO REVIEW CLERK’S TAXING OF COSTS PURSUANT TO F.R.C.P. 54(D)(1)

CHRISTINE M. ARGUELLO United States District Judge

This matter is before the Court on Plaintiff’s Motion to Review Clerk’s Taxing of Costs Pursuant to Fed.R.Civ.P. 54(d)(1). (Doc. # 67.) After conducting a de novo review and making necessary adjustments to the Clerk’s assessment, the Court enters costs in the amount of $21, 534.91.

I. BACKGROUND

On June 30, 2015, this Court granted Defendant’s motion for summary judgment. (Doc. # 56.) Defendant submitted a Proposed Bill of Costs on July 14, 2015, seeking $32, 667.76. (Doc. # 59.) The Clerk of the Court conducted a hearing on August 13, 2015 and entered costs in the amount of $22, 682.01 on August 17, 2015. (Doc. # 66.) On August 25, 2015, Plaintiff filed a Motion to Review Clerk’s Taxing of Costs Pursuant to Fed.R.Civ.P. 54(d)(1). (Doc. # 67.) On September 11, 2015, Defendant filed a response (Doc. # 69), and Plaintiff thereafter replied (Doc. # 70).

II. LEGAL STANDARD

Federal Rule of Civil Procedure Rule 54(d)(1) authorizes the Clerk of the Court to assess taxable costs, providing that “costs-other than attorney’s fees-should be allowed to the prevailing party.” Pursuant to Sorbo v. United Parcel Serv., 432 F.3d 1169, 1179 (10th Cir. 2005), Fed.R.Civ.P. 54(d)(1) limits recovery to the following costs enumerated in 28 U.S.C. § 1920:

(1) Fees of the clerk and marshal; (2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;(5) Docket fees under [28 U.S.C.S. § 1923]; (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under [28 U.S.C.S. § 1828].

However, only costs that are “reasonably necessary” for litigation are taxable. See Furr v. AT&T Techs., Inc., 824 F.2d 1537, 1550 (10th Cir. 1987). In determining what costs are reasonably necessary to the litigation, a court should view the facts in light of what the parties knew at the time the expenses were incurred. Callicrate v. Farmland Indus., 139 F.3d 1336, 1340 (10th Cir. 1998) (stating that it would be inequitable to withhold discovery costs which ultimately had no bearing on the court’s decision, but appeared necessary for the preparation of the case at the time they were incurred). This Court reviews de novo a Clerk’s assessment of costs. In re Williams Sec. Litig. – WCG Subclass, 558 F.3d 1144, 1147 (10th Cir. 2009).

III. ANALYSIS

A. VIDEO DEPOSITIONS

Plaintiff contends that the Clerk inappropriately entered costs for the transcription and video recording of depositions, arguing that 28 U.S.C. § 1920 only authorizes a court to tax fees for either printed or electronically recorded transcripts, but not both. (Doc. # 67 at 4.)

“A judge or clerk of any court of the United States may tax as costs . . . [f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case.” 28 U.S.C. § 1920 (emphasis added). Although district courts in other circuits have concluded the disjunctive “or” precludes recovery of both costs, the Court of Appeals for the Tenth Circuit has expressly held that it is not an abuse of discretion to tax costs for both the videotaping and transcription of depositions. Compare Cowden v. BNSF Ry. Co., 991 F.Supp.2d 1084, 1090 (E.D. Mo. 2014) (“[T]he plain language of the statute is clear . . . a party cannot recover the cost of both a stenographic and video of the same deposition.”) with Tilton v. Capital Cities/ABC, 115 F.3d 1471, 1478 (10th Cir. 1997) ("[T]he district court did not abuse its discretion in taxing the costs of both the preparation and transcription of the . . . videotaped depositions.").

Plaintiff accurately notes that the 10th Circuit decided Tilton before 28 U.S.C. § 1920 was amended to include reference to video recordings. (Doc. # 67 at 5.) However, since the modification, the United States District Court for the District of Colorado has, citing Tilton, permitted the taxation of costs for both video and stenographic transcripts. See, e.g., Chung v. El Paso Sch. Dist., 2015 U.S. Dist. LEXIS 155980 at *38 (D. Colo. Nov. 17, 2015) (“The Court finds that the Clerk did not err in awarding Defendant costs for videotaping the deposition . . . and for the stenographic transcript of that deposition.”); Foster v. Mt. Coal Co., LLC, 2015 U.S. Dist. LEXIS 96180 at *4 (D. Colo. July 23, 2015) (“[W]here a court finds that a deposition was reasonably necessary to the litigation of the case . . . the court should ‘in most cases’ allow costs for both stenographic transcription and videotaping.”).

Additionally, as the Clerk noted, there is a public policy interest in allowing, and even encouraging, parties to videotape depositions. (Doc. # 66 at 3.) Videotaped depositions promote efficiency and judicial economy. Tilton, 115 F.3d at 1477. It comports with public policy to allow the recovery of costs associated with a “time-saving method[] that serve[s] to improve our system of justice.” Id. (quoting Commercial Credit Equip. Corp. v. Stamps, 920 F.2d 1361, 1368 (7th Cir. ...


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