Free Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-00413-JLK-BNB

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Filed 11/20/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-00413-JLK-BNB M.D. MARK, INC., Plaintiff, v. KERR-McGEE CORPORATION and ORYX ENERGY COMPANY, Defendants. DEFENDANTS' RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION TO REVIEW TAXATION OF COSTS Defendants Kerr-McGee Corporation and Oryx Energy Company1 (collectively "Defendants") oppose Plaintiff's Motion to Review Taxation of Costs for the reasons stated below. INTRODUCTION On October 16, 2007, Plaintiff and Defendants presented their respective positions regarding each of the expenses listed in Plaintiff's Bill of Costs to a Deputy Clerk of the Court (the "Clerk"). After this careful examination, the Clerk taxed $10,530.63 in costs against Defendants. Plaintiff now raises new arguments in a effort to recover costs the Clerk determined to be non-taxable. However, the Clerk properly applied FED. R. CIV. P. 54(d), 28 U.S.C. § 1920, and the "necessarily obtained" legal standard that govern taxable costs. Accordingly, the Court should not disturb the Clerk's determination on the amount of costs to be taxed against Defendants.
Oryx Energy Company ceased to exist on February 26, 1999, at which time it became Kerr-McGee as a result of a statutory corporate merger.
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LEGAL STANDARD Taxation of costs rests within the discretion of the trial court. Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471, 1476 (10th Cir. 1997). Statutes providing for the taxation of costs are, to a degree, penal in nature and must be strictly construed. United States v. Pommerening, 500 F.2d 92, 102 (10th Cir. 1974). Items proposed by winning parties as costs should always be given careful scrutiny, and the discretion to tax costs not specifically authorized by statute should be used sparingly. U.S. Indus., Inc. v. Touche Ross & Co., 854 F.2d 1223, 1245 (10th Cir. 1988); Tilton, 115 F.3d at 1476 (citing Farmer v. Arabian Am. Oil Co., 379 U.S. 227 (1964)). Ultimately, Court must exercise its discretion by examining whether or not the requested costs are for "materials necessarily obtained for use in the case. U.S. Indus., Inc. 854 F.2d at 1245. "Necessarily obtained" does not refer to costs that simply added convenience for counsel or were incurred solely for discovery purposes. Id.; see also Karsian v. Inter-Regional Financial Group, Inc., 13 F.Supp.2d 1085, 1088 (D. Colo. 1998). Even where a requested cost is permitted by statute, the Court may still reject it based on a reasonableness determination. Karsian, 13 F.Supp.2d at 1088. ARGUMENT I. The Costs of Twelve Juror Notebooks and Plaintiff's Demonstrative Explanation of Seismic Data Are Unreasonable and Were Not Necessarily Incurred. A. Juror Notebooks.

Trial exhibit costs are not expressly authorized by statute, and the Court should exercise its discretion to award such costs sparingly. Tilton, 115 F.3d at 1476 (citing Farmer v. Arabian Am. Oil Co., 379 U.S. 227 (1964)). Even without express statutory authority, the Clerk taxed the costs for Plaintiff to prepare four exhibit notebooks because four sets of exhibits were required

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by the Court. See Memorandum Regarding Pretrial and Trial Procedures, Senior Judge John L. Kane, at 14. Plaintiff now seeks to recover additional costs for twelve juror notebooks, even though they were not required, but cites nothing about the circumstances of this case that would justify recovery of these costs. See Tilton, 115 F.3d at 1476 (costs for trial exhibits examined under circumstances of particular case). The Clerk examined the particular circumstances of this case, specifically acknowledging that the Court's pretrial procedures memorandum encourages the parties to provide each juror with copies of the exhibits. However, the Clerk properly determined that this encouragement does not rise to the level of making Plaintiff's twelve juror notebooks necessarily obtained for use in the case. Even if, hypothetically, Plaintiff were entitled recover the costs of twelve juror notebooks, the Court should consider that Plaintiff's exhibit list was grossly over inclusive; the Parties (both Plaintiff and Defendant) used only 94 of Plaintiff's exhibits at trial. See generally Trial Transcript. While Plaintiff requested that all of its stipulated exhibits be admitted into evidence, Plaintiff discussed less than half of the 209 exhibits on its list. Thus, Plaintiff's request to recover the entire costs of twelve juror notebooks is unreasonable given the number of Plaintiff's exhibits actually used at trial, and should be denied. See Karsian, 13 F.Supp.2d at 1088 (court may deny unreasonable costs). B. Seismic Data Demonstrative.

As part of its opening statement, Plaintiff made a very brief, computer-assisted demonstrative presentation regarding the acquisition, cost and use of seismic data. See Tr. at 138-47. Plaintiff subsequently presented substantially the same information to the jury through live testimony. See generally Testimony of Leon Herzog, Robert Gray, Tricia Cherne, and

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Marilyn Davies. Under such circumstances, Plaintiff's seismic data demonstrative was not necessarily obtained for use in this case, even if it was helpful to the jury, because the demonstrative was supplementary to and cumulative of evidence presented later at trial. See Robertson v, McCloskey, 121 F.R.D. 131, 133 (D.D.C. 1988). Further, Plaintiff used its seismic data demonstrative for only few minutes of this seven day jury trial, yet seeks to recover a disproportionate and unreasonable sum of $10,989.97. See Plaintiff's Motion to Review Taxation of Costs at 3. The Court should, therefore, deny Plaintiff's request to recover the costs of its seismic data demonstrative because it is not taxable as a necessarily obtained item, and the amount requested is unreasonable. II. Costs For the Management Of Discovery Documents and Color Copies of Deposition Designations Were Incurred Solely for Discovery and Convenience. Expenses that simply added convenience for counsel or were incurred solely for discovery purposes are not taxable. U.S. Indus., Inc. 854 F.2d at 1245; see also Karsian, 13 F.Supp.2d at 1088 (D. Colo. 1998). Plaintiff, however, seeks to recover $4,414.43 for copying, bates labeling and scanning "every document produced in this case," and $398.82 for obtaining color copies of deposition designations. See Plaintiff's Motion to Review Taxation of Costs at 3. While such expenses may have assisted Plaintiff's counsel in organizing discovery documents and reading its deposition designations into the record, these considerations of discovery management and counsel's convenience do not render them necessarily obtained. Id. U.S. Indus., Inc. 854 F.2d at 1245; see also Karsian, 13 F.Supp.2d at 1088 (D. Colo. 1998).

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III.

The Clerk Made a Proper Determination as to Which Deposition Transcripts Were Necessarily Obtained. The Clerk determined that Plaintiff was entitled to recover the costs for deposition

transcripts that were used at trial or in summary judgment briefing. Plaintiff now seeks to recover $4,879.54 in costs for additional deposition transcripts based on the fact that certain witnesses were identified in the Pretrial Order and one of the parties' final witness list. Under 28 U.S.C. § 1920(2), a court may exercise its discretion to tax costs for deposition transcripts beyond those used at trial or in summary judgment briefing. Karsian, 13 F.Supp.2d at 1088 (emphasis added). However, use at trial or summary judgment briefing readily demonstrates whether or not a deposition transcript was "necessarily obtained." See U.S. Indus., Inc., 854 F.2d 1245. Thus, the Clerk's taxation of costs for deposition transcripts affirmatively used by one of the Parties is consistent with § 1920(4) and interpretive case law, and should not be disturbed. CONCLUSION For the reasons stated above, the Court should accept the Clerk's taxation of $10,530.63 in costs against Defendant and DENY Plaintiff's Motion to Review Taxation of Costs.

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Dated: November 20, 2007. Respectfully submitted, s/M. Antonio Gallegos____________ Scott S. Barker Gregory E. Goldberg M. Antonio Gallegos H OLLAND & H ART LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, Colorado 80201-8749 Phone: (303) 295-8513 Fax: (303) 295-8261 [email protected] [email protected] [email protected] Marie R. Yeates Vinson & Elkins LLP 1001 Fannin Street, Suite 2500 Houston, Texas 77002-6760 Phone: 713.758.4576 Fax: 713.615.5544 [email protected] A TTORNEYS F OR D EFENDANTS

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CERTIFICATE OF SERVICE

I hereby certify that on November 20, 2007, I electronically filed the foregoing document with the Clerk of Court using CM/ECF system, which will serve, via electronic mail, the following: PELZ, BONIFAZI & INDERWISH, P.C. Harlan P. Pelz Daniele W. Bonifazi [email protected] [email protected]

s/ Randi L. Dixon

3783704_1.DOC

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