Save Those Invoices! Recent Taxation of Costs Opinion

Save those invoices: costs for using a private process server to serve summonses and subpoenas are taxable as are reasonable costs for copies of trial exhibits. On the other hand, do not expect to recover costs for deposition transcripts where they were only used to prepare witness examinations or “frivolous motions.”

In a non-IP case, Judge Robinson recently ruled on a defendant’s motion for review of the clerk’s taxation of costs: Federal Ins. Co. v. Bear Indus, Inc., C.A. No. 03-251 (D. Del. Nov. 18, 2006) (Robinson, J.). In that case, Bear Industries received a jury verdict in its favor and subsequently moved for taxation of all costs including: (1) costs for serving summonses and subpoenas using a private process server; (2) costs of deposition transcripts; (3) costs for copying admitted trial exhibits. Judge Robinson held that the costs of serving summonses and subpoenas using a private process server are “generally granted as reasonable expenses,” and therefore were taxed against the plaintiff. Id. As to the deposition transcripts, although the Local Rule (L.R. 54.1(b)(3)) allows for taxation of such costs where a “substantial portion of the deposition is admitted into evidence at trial or otherwise used in the resolution of a material issues in the case,” defendant’s use of the transcripts in this case was to prepare for examining witnesses and to draft motions in limine to exclude each other’s expert witness. The Court held that the use of the transcripts in preparation for examining a witness is a “routine use” and not one that is directed to resolving a “material issue in the case.” Id. at 2. As to their use in preparing their respective motions to exclude, the Court stated that all of these motions were denied and therefore it “was not inclined to reward any party for filing such frivolous motions.” Id. Finally, the Court granted costs for copying admitted trial exhibits where the costs were “adequately supported” but declined to grant costs where the defendant failed to show that the time spent and hourly rate charged by the consultant in preparing certain exhibits/demonstratives were reasonable. Id. at 2-3.

Lessons learned: save those invoices and make sure they contain sufficient detail to support the final costs and demonstrate that those costs were reasonable.

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