United States District Court, D. Colorado
ORDER CONCERNING EXPERT WITNESS FEES AND AWARD OF
E. BLACKBURN UNITED STATES DISTRICT JUDGE
matter is before me on the following: (1)
Plaintiff's Motion To Compel
Payment of Deposition Fees of Plaintiff's Experts
Deposed by Defendants [#127] filed May 25, 2018; and (2)
Plaintiff's Motion for Review of Clerk's
Award of Costs [#150] filed July 26, 2018. The
defendants filed responses [#140, #151], and the plaintiff
filed replies [#142, #152]. I grant the motion to compel
payment of expert witness fees in part and deny it in part.
Similarly, I grant the motion for review of costs in part and
deny it in part.
jurisdiction over the parties and subject matter of this
case. My jurisdiction arises under 28 U.S.C. § 1331
(federal question) and 28 U.S.C. § 1338(a) (patent
STANDARD OF REVIEW
Deposition Fees of Experts
seeking discovery from an expert “must pay the expert a
reasonable fee for time spent in responding to discovery,
” unless manifest injustice would result. Fed.R.Civ.P.
26(b)(4)(E)(i). What constitutes a reasonable fee for
purposes of this rule lies within the discretion of the
court. Fiber Optic Designs, Inc. v. New Eng.
Pottery, LLC, 262 F.R.D. 586, 589 (D. Colo.
2009). Several factors may be relevant in determining a
reasonable fee, including: (1) the area of expertise of the
expert; (2) the education and training required to provide
the expert insight that is sought; (3) the prevailing rates
of other comparably respected available experts; (4) the
nature, quality and complexity of the discovery responses
provided; (5) the fee actually being charged to the party who
retained the expert; (6) fees traditionally charged by the
expert on related matters; and (7) any other factor likely to
be of assistance to the court in balancing the interests
implicated by Rule 26. Id.
costs are delineated in 28 U.S.C. § 1920. The burden is
on the prevailing party to establish that the expenses it
seeks to have taxed as costs are authorized by § 1920.
English v. Colorado Department of Corrections, 248
F.3d 1002, 1013 (10th Cir. 2001); Griffith v.
Mt. Carmel Medical Center, 157 F.R.D. 499, 502 (D. Kan.
1994). Expenses not specifically authorized by the statute
are not recoverable as costs. Crawford Fitting Co. v.
J.T. Gibbons, Inc., 482 U.S. 437, 441-42 (1987); Bee
v. Greaves, 910 F.2d 686, 690 (10th Cir.
1990). Moreover, even when costs are allowed by statute, the
prevailing party still must demonstrate that the amount
requested is reasonable. See U.S. Industries, Inc. v.
Touche Ross & Co., 854 F.2d 1223, 1245
(10th Cir. 1988), overruled on other
grounds as recognized by Anixter v. Home-Stake Products
Co., 77 F.3d 1215, 1231 (10th Cir. 1996).
the limits of § 1920, costs may be awarded for items and
services necessarily obtained for use in the case.
“(A)ll § 1920 requires is that the generation of
taxable materials be reasonably necessary for use in the case
at the time the expenses were incurred.” In re
Williams Securities Litigation-WCG Subclass, 558 F.3d
1144, 1149 (10th Cir. 2009) (internal quotation and citation
omitted). “The most direct evidence of
‘necessity' is the actual use of materials obtained
by counsel or by the court.” U.S. Industries,
Inc., 854 F.2d at 1246. On the other hand, actual use in
a motion presented to the court does not define the absolute
outer limit of necessary costs, either. See Mitchell v.
City of Moore, Oklahoma, 218 F.3d 1190, 1205
(10th Cir. 2000) (“[I]t would be inequitable
to essentially penalize a party who happens to prevail on a
dispositive motion by not awarding costs associated with that
portion of discovery which had no bearing on the dispositive
motion, but which appeared otherwise necessary at the time it
was taken for proper preparation of the case.”)
(quoting Callicrate v. Farmland Industries, Inc.,
139 F.3d 1336, 1341 (10th Cir. 1998)). Similarly,
actual use at trial is not required to show that a cost may
be awarded under § 1920.
DEPOSITION FEES OF EXPERTS
patent infringement case, the defendants, ProEdge Dental
Products, Inc. and Mark A. Frampton, deposed two expert
witnesses endorsed by the plaintiff, Sterisil, Inc. The
expert witnesses are Dr. Karl Linden and Armando Chavez.
ProEdge, agrees that it must pay the reasonable
costs of its depositions of Mr. Chavez and Dr. ...