Bill of Costs Guidelines

Bill of Costs Guidelines
Southern District of Iowa

This document is intended to give guidance to counsel on how our district generally handles the Taxation of Costs pursuant to 28 U.S.C. § 1920 and Local Rule 54, “Taxation and Payment of Costs.” It describes what items are usually allowed and disallowed, and what documentation is required, in the various cost categories. For specific deadlines and the form to be used, see Local Rule 54, on our website at www.iasd.uscourts.gov. Form AO 133 or similar format may be used.

Please note that the information below is advisory, and not absolute, as the allowance or disallowance of a particular cost may change based on the circumstances of an individual case, the discretion of the presiding judge, and changing case law.
 

I. Introduction
The Clerk does the initial taxation of costs, adhering to the deadlines in Local Rule 54, except that five court days are allowed for reply to the resistance, if needed. The practice is to proceed with taxation even if there is a pending appeal. However, if a party believes there is reason to wait, a written request to that effect may be filed.

There are some limits to the Clerk’s discretion when taxing costs, such as in areas of equity, or where specific knowledge of the trial or legal issues of the case are required. In such areas, a cost may be denied due to lack of authority or lack of information. The requesting party may then seek review by the presiding judge under Fed. R. Civ. P. 54(d)(1).

If the claim or invoice for any cost does not contain specific enough information for a determination as to necessity or taxability to be made, the Clerk has the discretion to estimate an allowance or deduction, or to deny the cost.

Nothing herein precludes a presiding judge from taxing costs instead of the Clerk.

II. Fees of the Clerk
These fees are listed at 28 U.S.C. § 1914, and Local Rule 83.1(c)(4). Claimed costs usually include the initial filing fee and pro hac vice fees. In a case removed to this court, it may also include the fee paid to the state court when the case was originally filed. Pro hac vice fees are allowed. Winter v. Novartis Pharmaceuticals, 2012 WL 3993623 (W.D. Mo. September 11, 2012); Craftsmen Limousine, Inc. v. Ford Motor Company, 579 F.3d 894, 896 (8th Cir. 2009); Documentation of payment of any fees claimed should be provided.
III. Fees for Service of Summons and Subpoena
The only service fees authorized by statute are the U.S. Marshal’s, and they rarely do service now that service by mail or waiver of service is customary. Costs of private process servers are generally disallowed. Amana Society, Inc. V. Excel Engineering, Inc., 2013 WL 427394 (N.D. Iowa Feb. 4, 2013); Family Mut. Ins. Co. v. Miell, 569 F.Supp.2d 841, 860 (N.D. Iowa 2008); Crues v. KFC Corporation, 768 F.2d 230 (8th Cir. 1985).
IV. Fees for Transcripts
a. Allowed and Disallowed Transcript Costs Generally
Allowable costs for transcripts include the court reporter’s attendance fee, an original and one copy of the transcript, copies of exhibits, and taxes. Invoices are required.

Items that will be disallowed are: multiple copies of the transcript (unless special necessity is proven), multiple versions of the transcript (e.g., ASCII, condensed, electronic, ETV Disk, CD), travel time, mileage, postage, delivery, shipping, read and sign charges, word index, expediting (unless necessity is proven), witness signature charge, rough edited disk, archiving, notebooks, binders, binding, hole punching, labeling, and other ancillary charges not specified in 28 U.S.C. § 1920. Amana Society, Inc. V. Excel Engineering, Inc., 2013 WL 427394 (N.D. Iowa Feb. 4, 2013); Smith v. Tenet Healthsys.SL, Inc., 436 F.3d 879, 889-90 (8th Cir. 2006).

If any of the ancillary services listed above were provided, but the cost of such cannot be determined from the invoice, the Clerk has the discretion to make an estimated deduction, or to disallow the entire cost.

The costs for the prevailing party’s attorney(s) to travel to a deposition are not taxable.

b. Deposition Transcripts
Depositions taken necessarily for use in the case, and not for purely investigative reasons, are allowed. Use in court or citation in a motion or brief are the most direct evidence of necessity, but even if not used in those ways, depositions are taxable as long as they were reasonably necessary in light of what was known at the time they were taken. Notation or explanation in supporting documentation as to the role or necessity of deponents is helpful in making that determination. Amana Society, Inc. V. Excel Engineering, Inc., 2013 WL 427394 (N.D. Iowa Feb. 4, 2013); Zotos v. Lindbergh Sch. Dist., 121 F.3d 356, 363 (8th Cir. 1997); Slagenweit v. Slagenweit, 63 F.3d 719, 721 (8th Cir. 1995) (per curiam).

c. Daily and Real-time Transcripts
Costs for daily or real-time transcripts will not be taxed absent the showing of a necessity for expedited transcripts, which is a higher standard than “necessary for use in the case.” They cannot have been merely useful or helpful to counsel. They may be allowed, for example, in unusually lengthy or complex cases, where counsel can demonstrate that the transcript was required to proceed in later stages of the trial or case. Farmer v. Arabian Am. Oil Co., 379 U.S. 227, 85 S. Ct. 411, 13 L. Ed. 2d 248 (1964).

d. Trial or Hearing Transcripts
These are allowed if ordered or requested by a judge, if preparation and taxation are stipulated to by the parties, or if necessity, not just usefulness, can be shown by the claimant. McDowell v. Safeway Stores, Inc., 758 F.2d 1293 (8th Cir. 1985) (per curiam).

e. Video Depositions
The costs of video depositions are recoverable under 28 U.S.C. § 1920. Craftsmen Limousine, Inc. V. Ford Motor Company, 579 F.3d 894 (8th Cir. 2009). However, costs for both a transcript and videotaping of a deposition are generally not allowed. In limited circumstances, they may both be taxed if it was believed at the time of the deposition that the witness would not be available to attend the trial. Such necessity should be explained in the supporting documentation. E.E.O.C. v. CRST Van Expedited, Inc., No. 07-cv-95-LRR, 2010 WL 520564, at *4-5 (N.D. Iowa Feb. 9, 2010); Brown v. The McGraw-Hill Companies, Inc., 526 F.Supp.2d 950, 958 (N.D. Iowa 2007).

V. Fees for Printing
The fees allowed under 28 U.S.C. § 1920(3) are not usually involved in trial court proceedings. The Court of Appeals taxes these fees and disbursements and includes them in their mandate.
VI. Fees for Witnesses
a. Generally
These are allowed under 28 U.S.C. § 1821, and include an attendance fee (currently $40 per day), travel expenses, and a subsistence allowance, for witnesses attending a court proceeding or deposition. Travel expenses are not to exceed the maximum per diem allowance prescribed by the Administrator of General Services, pursuant to 5 U.S.C. § 5702(a), for official travel in the relevant area by federal government employees. Per diem rates may be found at http://www.gsa.gov/portal/category/21287. Mileage rates may be found at http://www.gsa.gov/portal/content/100715. Receipts and invoices for travel expenses are required, except that listing the miles traveled on page 2 of the AO 133 (Bill of Costs) form is sufficient for claiming the mileage fee.

b. Experts
Generally, no distinction is made between fact witnesses and expert witnesses. Fees for a privately retained expert witness cannot be recovered in excess of the $40.00 limit found in 28 U.S.C. 1821(b). Pinkham v. Camex, Inc., 84 F.3d 292, 295 (8th Cir. 1996); Crawford Fitting Company v. J.T. Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987).

c. Parties, Real Parties in Interest, Corporate Officers
Witness fees and travel costs for parties or real parties in interest are generally not awarded. Hodge v. Seiler, 558 F.2d 284, 287 (5th Cir. 1977); Bowling v. Hasbro, Inc., 582 F. Supp. 2d 192, 209 (D.R.I. 2008); 10 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2678 (3d ed. 1998).

Corporate officers may receive witness fees and travel costs for days that they are deposed or testify, but not for attending a trial on days that they did not testify. However, receipt of these fees is generally allowed only if they are not so closely identified with the corporation that they are seen as real parties in interest themselves. Brown v. The McGraw-Hill Cos., Inc., 526 F. Supp. 2d 950, 956 (N.D. Iowa 2007); Taxation of Costs and Awards of Expenses in Federal Court, 101 F.R.D. 553, 578 (1984).

VII. Fees for Exemplification and Copies
a. Documentation and Disallowed Charges Generally
Costs will be taxed for copies, including items such as medical or other necessary records, to the extent that they were used as exhibits, or were required to be filed with the court or served on opposing counsel. Documentation is required for any copy costs claimed, whether in-house or from a vendor, though it is understood that it is nearly impossible to cite the identity and purpose of every copy made. Records must be in sufficient detail so that it can be determined whether the costs are or are not taxable, such as number of pages, cost per page, and type (or at least category) of document(s), such as trial exhibits or summary judgment motion. The prevailing party should provide the “best breakdown obtainable from retained records.”

Invoices from vendors for copies will be reduced by ancillary charges of Bates labeling, technical time, tabs, binding, binders, image capture, branding, .pdf file conversion, CD, OCR, and tiff conversion. Durden v. Citicorp Trust Bank, FSB, 2010 WL 2105921 at *4 (M.D. Fla. Apr. 26, 2010); M.D. Mark, Inc. v. Kerr-McGee Corp., 2008 WL 162990 at *5 (D. Colo. Jan. 15, 2008).

b. Discovery Documents
Copies of discovery related documents usually are not taxable, unless it is established that the case was unusually document-heavy due to the subject matter of the issues being considered. Little Rock Cardiology Clinic PA v. Baptist Health, 591 F.3d 591, 601-02 (8th Cir. 2009) (district courts are not required to tax discovery-related costs, but it is also not an abuse of discretion if they do tax such costs).

c. Demonstrative Exhibits
Production of demonstrative exhibits, such as videos, movies, photographs, charts, graphs, and maps, are taxable when necessarily obtained for use in the case. However, if they merely illustrate expert testimony or other adequate evidence, they may be disallowed. Mikel v. Kerr, 499 F.2d 1178, 1182 (10th Cir. 1974); Robertson v. McCloskey, 121 F.R.D. 131, 133 (D.D.C. 1988); Kaiser Indus. Corp. v. McLouth Steel Corp., 50 F.R.D. 5, 11 (E.D. Mich. 1970).

d. Electronically Stored Information (ESI)
In cases where it is anticipated that discovery will be in the form of electronically stored information (ESI), parties should include in the Scheduling Order or in a memorialized agreement between counsel, procedures by which everyone is expected to proceed in the expense for production, storage, and management of such materials. As with other areas, costs deemed necessary to the case, and not mere convenience, are taxable. Unique Vacations Inc. v. Trip Mate, Inc., 2013 WL 3336631 (W.D. Mo. July 2, 2013); Race Tires Am., Inc., v. Hoosier Racing Tire Corp., 674 F.3d 158, 167, 171-72 (3d Cir. 2012) (discussion of e-discovery case law and allowance of costs in that instant case); Country Vintner of N.C., LLC v. E. & J. Gallo Winery, Inc., 718 F.3d 249, 261-62 (4th Cir. 2013).

VIII. Docket Fees under 28 U.S.C. § 1923
These are fees linked to various types of filings, as listed in the statute.
IX. Costs shown on Mandate of Court of Appeals
These fees would include printing done for an appeal (see V. above), and any other costs designated by the Court of Appeals.
X. Compensation of Court-Appointed Experts
These are authorized by 28 U.S.C. § 1920(6).
XI. Compensation of Interpreters
These are authorized by 28 U.S.C. § 1828(c).
XII. Other Costs
Costs not obviously fitting under one of the above categories may be claimed here. Some costs not allowable are normal office overhead, computerized legal research, long distance and fax charges, postage, overnight delivery charges, and investigators.