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Johns Manville Corp v. Knauf Insulation, LLC

United States District Court, D. Colorado

May 25, 2018

JOHNS MANVILLE CORPORATION, a Delaware corporation, and JOHNS MANVILLE, a Delaware corporation, Plaintiffs,
v.
KNAUF INSULATION, LLC, a Delaware corporation, WALTER A. JOHNSON, individually, and KHAUF INSULATION GMBH, a German corporation, Defendants.

          ORDER ON DEFENDANT'S MOTION TO REVIEW CLERK'S TAXATION OF COSTS

          R. BROOKE JACKSON UNITED STATES DISTRICT JUDGE

         Defendants Knauf Insulation, Inc. and Knauf Insulation GmbH seek review of two aspects of the Clerk's award of costs to them: (1) the exclusion of expert witness fees; and (2) the exclusion of a portion of defendants' electronic discovery costs. The motion is granted in part and denied in part.

         PERTINENT BACKGROUND

         Plaintiffs (“JM”) sued defendants (“Knauf”) in federal court for misappropriation of trade secrets in violation of the Colorado Uniform Trade Secrets Act. Federal jurisdiction was based on diversity of citizenship pursuant to 28 U.S.C. § 1332(a). The jury rendered its verdict in favor of Knauf. As the prevailing party Knauf was awarded costs to be taxed by the Clerk of the Court pursuant to Fed.R.Civ.P. 54(d)(1) and D.C.COLO.LCivR 54.1.

         Knauf's final bill of costs totaled $996, 297.24. ECF No. 326. This included $585, 422.51 in expert witness fees and $253, 883.05 in e-discovery costs. See ECF No. 326-1 at 21, 35. JM opposed any award of expert witness fees and opposed all but $23, 493.89 of the e-discovery costs. ECF No. 322 at 1-2.[1]

         The Clerk awarded $172, 700.77. ECF No. 342. The award did not include any expert witness fees, as the Clerk found that they were preempted by federal statutes and cases. Id. at 28-31. The Clerk awarded $23, 963.77 for e-discovery costs, being the sum of the amount JM did not dispute plus sales tax stipulated by the parties. Id. at 2, 19. The Clerk rejected the remainder of the claimed e-discovery costs, apparently agreeing with JM that they were not recoverable under 28 U.S.C. § 1920(4) (permitting taxation of “[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case.”).

         In the pending motion Knauf asks the Court to reverse the Clerk's denial of its claimed $585, 422.51 in expert witness fees and the Clerk's exclusion of the remainder of its claimed e-discovery costs. ECF No. 346. JM has filed its opposition, ECF No. 350, and Knauf has filed a reply. ECF No. 353.

         FINDINGS AND CONCLUSIONS

         A. Expert Witness Fees.

         The dispute concerns Knauf's entitlement to an award of expert witness fees, not the reasonableness of the amount claimed. Knauf's position is based on the undisputed facts that on March 2, 2016 Knauf offered to settle the case for $100, 000, but JM did not accept the offer. See ECF Nos. 327-1 and 327-2. Knauf asks the Court to award expert witness fees pursuant to Colo Rev. Stat. § 13-17-202, which in pertinent part provides as follows:

(1)(a) . . . in any civil action of any nature commenced or appealed in any court of record in this state: . . .
(II) If the defendant serves an offer of settlement in writing at any time more than fourteen days before the commencement of the trial that is rejected by the plaintiff, and the plaintiff does not recover a final judgment in excess of the amount offered, then the defendant shall be awarded actual costs accruing after the offer of settlement to be paid by the plaintiff. . . .
(b) For purposes of this section, “actual costs” shall not include attorney fees but shall mean costs actually paid or owed by the party, or his or her attorneys or agents, in connection with the case, including but not limited to filing fees, subpoena fees, reasonable expert witness fees, copying costs, court reporter fees, reasonable investigative expenses and fees, reasonable travel expenses, exhibit or visual aid preparation or presentation expenses, legal research expenses, and all other similar fees and expenses.

         Knauf argues that because its actual costs included reasonable expert witness fees, a category expressly included within the statute's ...


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