DAVID S. DOTY, District Judge.
This matter is before the court upon the motion for review of taxation of costs by plaintiff Todd Smith-Bunge. Based on a review of the file, record, and proceedings herein, and for the following reasons, the court grants the motion in part.
On August 31, 2017, the court granted defendant Wisconsin Central, Ltd.'s motion for summary judgment on Smith-Bunge's Federal Railroad Safety Act (FRSA) claim. On January 1, 2018, the parties agreed to dismiss the remaining Federal Employers Liability Act claim (FELA). On April 18, 2018, the clerk of court taxed $11,265.32 in favor of Wisconsin Central. Smith-Bunge now moves for review of the cost judgment, raising several objections.
Smith-Bunge first argues that the court should not consider Wisconsin Central the prevailing party because it only prevailed on the FRSA claim. This argument is wholly without merit.
A party who prevails as to a substantial part of the litigation is considered the "prevailing party" under Fed. R. Civ. P. 54(d), "even if it has not succeeded on all of its claims."
The court has "substantial discretion" in awarding costs to a prevailing party under 28 U.S.C. § 1920 and Federal Rule of Civil Procedure 54(d).
Smith-Bunge objects to the taxation of costs incurred by defendants in deposing him. He argues, without citation to legal authority, that Wisconsin Central failed to apportion the costs of the deposition between testimony that was relevant to the successful FRSA claim and the dismissed FELA claim. The court is not persuaded.
The court believes it would be inappropriate to reduce the costs of a deposition based on the percentage of the testimony that was relevant to the successful claim. Not only would such an undertaking be overly burdensome, "there is a strong presumption that a prevailing party shall recover [taxable costs] in full measure."
Smith-Bunge also objects to the taxation of $1,653.75 for the video recording of his deposition, arguing it was not reasonably necessary. Both video recordings and written transcripts for the same deposition are taxable if they are reasonably necessary.
Both in the submitted bill of costs and their moving papers, Wisconsin Central vaguely refers to Smith-Bunge's health issues, but without specific evidence showing that those health issues would make Smith-Bunge unable to testify at trial. This is insufficient to show that such costs were reasonably necessary.
Next, Smith-Bunge objects to the taxation of costs incurred for the depositions of Daniel Lofgren, who was his expert witness, and Michael Rogers. Again, Smith-Bunge argues that these depositions were mostly relevant only to the dismissed FELA claim, but, as discussed above, this is irrelevant.
Additionally, the court finds that the depositions were reasonably necessary because both witnesses had information relevant to the claims and defenses in the case. Lofgren served as plaintiff's expert witness to as to causation, and Rogers was an expert witness during the investigative hearing that served as Wisconsin Central's basis for terminating Smith-Bunge's employment. Further, the court relied on both depositions in granting summary judgment on the FRSA claim. ECF No. 129 at 2;
Smith-Bunge also argues that the depositions of Tom Bourgonje, Elizabeth Smith-Bunge, and Jonathan Speare were improperly taxed because their depositions were not submitted by Wisconsin Central in support of their summary judgment motion. But the fact that a deposition was not relied upon by a party in a motion or at trial does not mean that the deposition was not reasonably necessary.
Bourgonje's deposition was noticed by Smith-Bunge and was cited by him in his memorandum opposing summary judgment. Although Wisconsin Central did not cite to Bourgonje's deposition, it was reasonably necessary to obtain a transcript so that it could adequately respond to any claims made by Smith-Bunge.
Elizabeth Smith-Bunge's and Jonathan Speare's depositions were also reasonably necessary. Ms. Smith-Bunge, plaintiff's wife, and Jonathan Speare, his treating psychologist, both had relevant information concerning his claims of mental anguish and emotional distress. Accordingly, the clerk properly taxed the cost of these depositions.
Smith-Bunge next objects to the taxation of incidental deposition fees. Specifically, he argues that fees incurred for shipping, handling, "real legal e-transcript," and "read & sign" are not taxable costs. The court agrees that these are not taxable costs, but the record reflects that Wisconsin Central withdrew, and the clerk did not tax, these costs.
Finally, Smith-Bunge objects to the taxation of $2,207.02 in copying fees, arguing that they were not reasonably incurred. The court disagrees. The record in this case was extensive, comprising more than 900 documents produced by Smith-Bunge, over 300 pages of medical records, and 1,300 pages produced by Wisconsin Central. McNee Decl. ¶ 4. It is undisputed that most of the fees were incurred in copying these documents for use as exhibits in Smith-Bunge's deposition. The court agrees with Wisconsin Central that although some of these documents were not ultimately used in the deposition, the copies were reasonably necessary so that counsel could be adequately prepared.
Accordingly, based on the above,
1. Plaintiff's motion for review of taxation of costs [ECF No. 169] is granted in part as set forth above; and
2. The clerk of court is ordered to amend the cost judgment to reflect a reduction of $1,653.75 for transcript fees.