United States District Court, D. Colorado
JOHNS MANVILLE CORPORATION, a Delaware corporation, and JOHNS MANVILLE, a Delaware corporation, Plaintiffs,
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
BROOKE JACKSON UNITED STATES DISTRICT JUDGE
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.
(“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.
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
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.”).
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
Expert Witness Fees.
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.
argues that because its actual costs included reasonable
expert witness fees, a category expressly included within the