Free Brief in Opposition to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01263-REB-KLM

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01263-REB-KLM ROBERT M. FRIEDLAND, Plaintiff, v. TIC ­ THE INDUSTRIAL COMPANY and GEOSYNTEC CONSULTANTS INC., f/k/a GEOSERVICES, INC. Defendants.

RESPONSE IN OPPOSITION TO GEOSYNTEC'S MOTION TO REVIEW TAXATION OF COSTS Plaintiff, Robert M. Friedland, through his undersigned attorneys, respectfully submits this Response in Opposition to GeoSyntec Consultants Inc.'s, f/k/a Geoservices, Inc. ("GeoSyntec") Motion to Review Taxation of Costs ("Motion for Review"). INTRODUCTION GeoSyntec requested $7,534.46 in costs for deposition transcripts and copies of documents that were obtained in the normal course of discovery for trial. After a hearing addressing GeoSyntec's Bill of Costs (Docket #304), the District Clerk disallowed all of GeoSyntec's requested costs because they did not satisfy the statutory requirements. Specifically, the District Clerk disallowed these costs because the transcripts and copies were not necessarily obtained ­ or used ­ for the purpose of presenting evidence to the Court regarding Defendants' Joint Motion for Summary Judgment on Damages (Docket #153). Accordingly, GeoSyntec's Motion for Review should be denied.

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ARGUMENT A. All of GeoSyntec's Costs Were Disallowed Because they Did Not Meet the Express Requirements of 28 U.S.C. § 1920

GeoSyntec requested $7,534.46 in costs pursuant to Fed. R. Civ. P. 54(d). As noted in Sorbo v. United Parcel Service, 432 F.3d 1169, 1179 (10th Cir. 2005), "[a]bsent some other statutory authorization, costs available to a prevailing party under Rule 54(d)(1) are limited to those specified in 28 U.S.C. § 1920." See also Bee v. Greaves, 910 F.2d 686, 690 (10th Cir. 1990) (summarizing Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437 (1987)). GeoSyntec sought costs pursuant to two of the enumerated provisions of 28 U.S.C. § 1920, as follows: (2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; ... (4) Fees for exemplification and copies of paper necessarily obtained for use in the case . . . .

28 U.S.C. § 1920 (emphasis added); see also Affidavit of Terence M. Ridley in Support of Defendant GeoSyntec Consultants, Inc.'s Bill of Costs (Docket # 318), pp. 4-7. The term "for use in the case" of 28 U.S.C. § 1920 has been interpreted to mean "materials actually prepared for use in presenting evidence to the court." United Int'l Holdings, Inc. v. the Wharf (Holdings) Limited, 174 F.R.D. 479, 484 (D. Colo. 1997). Because the deposition transcripts and other documents that GeoSyntec sought for reimbursement were obtained in the normal course of discovery, and not sought for the specific purpose of pursuing the Defendants' Joint Motion for Summary Judgment on Damages (Docket # 153) ­ or even

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presented to the Court ­ GeoSyntec's Bill of Costs did not satisfy the requirements of 28 U.S.C. § 1920 and its Motion for Review should be denied. 1. GeoSyntec's Deposition Costs were Disallowed Because they were Not Presented to the Court or Used in the Disposition of the Case

Most of GeoSyntec's requested costs ­ $5,666.25 ­ are for the costs GeoSyntec incurred to obtain the deposition transcripts of three witnesses; 1) the plaintiff, Mr. Friedland, 2) Garth Allen, Mr. Friedland's expert regarding damages and allocation issues, and 3) Greg Shenton, a fact witness and employee of Ivanhoe Capital Corp. that Mr. Friedland intended to call at trial. The Defendants did not attach or refer to any of these deposition transcripts in their Joint Motion for Summary Judgment on Damages, nor were they considered by the Court in its Order terminating the litigation. Order Granting Defendants' Joint Motion for Summary Judgment on Damages (Docket #301). In his decision to disallow all of GeoSyntec's requested costs, the District Clerk referred to notes he made in the margins of the Affidavit of Terence M. Ridley in Support of Defendant GeoSyntec Consultants, Inc.'s Bill of Costs (Docket #304-2 and #318). Docket #318 is attached hereto as Exhibit 1. Ultimately, the District Clerk disallowed GeoSyntec's requested transcript costs because no deposition transcripts were actually "use[d] in the dispositive motion." Ex. 1, pp. 6-7. The District Clerk's decision comports with Tenth Circuit law on the issue. In Karsian v. Inter-Regional Financial Group, 13 F. Supp. 2d 1085, 1088 (D. Colo. 1998), the court noted that "the Tenth Circuit has held that costs are recoverable where the district court relied on deposition excerpts in deciding a summary judgment motion." Id., citing Tilton v. Capital Cities/ABC, Inc.115 F.3d 1471 (10th Cir. 1997). Even in Merrick v. Northern Natural Gas Co., 911 F.2d 426

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(10th Cir. 1990), a case cited by GeoSyntec to support recovery of these costs, the district court only assessed costs for depositions actually utilized by the court in considering the motion for summary judgment at issue in that case. Id. at 435 (aff'd by the 10th Circuit Court of Appeals). See also Wyne v. Medo Industries, Inc., 329 F. Supp. 2d 584, 589 (D. Md. N.D. 2004) ("it is reasonable to tax only those depositions submitted in connection with the dispositive motion that terminated the litigation"). Because the Court did not rely upon or even have opportunity to review the deposition transcripts before issuing its order terminating the case, GeoSyntec's transcript costs were properly disallowed. 2. GeoSyntec's Deposition Costs were Disallowed Because they were Obtained in the Ordinary Course of Discovery

As noted above, the term "for use in the case" of 28 U.S.C. § 1920 has been interpreted to mean "materials actually prepared for use in presenting evidence to the court." United Int'l Holdings, 174 F.R.D. at 484 (emphasis added). Materials collected in discovery or pursuant to Rule 26(a)(1) are considered "investigative materials" and are not eligible to be taxed as costs. James v. Coors Brewing Co., 73 F. Supp. 2d 1250, 1260 (D. Colo. 1999). Similarly, "[d]epositions taken solely for discovery purposes are not taxable." Id. at 1261; see also Karsian, 13 F. Supp. 2d at 1088 ("if the deposition was taken simply for discovery purposes, then costs are not recoverable"). In this instance, GeoSyntec improperly seeks costs for deposition transcripts that were obtained in the normal course of discovery and never presented to the Court as evidence. The fact that some portion of the deposition testimony touched upon the merits of Defendants' Joint Motion for Summary Judgment on Damages does not transform the transcripts into evidence "necessarily obtained" for purposes of the summary judgment

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motion, particularly when their usefulness in this regard was first identified in the affidavit supporting GeoSyntec's Bill of Costs. See 28 U.S.C. § 1920 (2) and (4). 3. GeoSyntec's Other Copy Costs Were Disallowed Because they were Obtained in the Ordinary Course of Discovery and Not Presented or Used in the Disposition of the Case

The remaining portion of GeoSyntec's Bill of Costs ­ $1,868.21 ­ relates to a broad range of copy costs totaling 13,936 pages; that included documents obtained in discovery from Mr. Friedland regarding his costs to defend the underlying litigation (Request No. 4), documents the Defendants provided to their expert (Request No. 5), and Mr. Friedland's insurance policies and settlement agreements related to the site at issue in the litigation (Request Nos. 2 and 3). Ultimately, the District Clerk disallowed these costs because they comprised inter-office copy costs (Request Nos. 1 and 3)1, because the documents were obtained in the normal course of discovery (Request No. 4), or were not actually used in the termination of the case (Request Nos. 2, 4 and 5). Ex. 1, pp. 4-6. Again, the District Clerk's decision is supported by the plain language of the statute and the accompanying Tenth Circuit authority. A party seeking the taxation of costs pursuant to 28 U.S.C. § 1920 must demonstrate "with sufficient specificity" why the requested costs fall within the purview of that statute. Karsian, 13 F. Supp. 2d at 1093. In this instance, the copy costs for which GeoSyntec sought reimbursement were obtained in discovery and not "necessarily" for presentation of evidence related to the summary judgment motion. James v. Coors Brewing Co., 73 F. Supp. 2d at 1260 (materials collected in discovery or pursuant to Rule 26(a)(1) are considered "investigative materials" and are not eligible to be taxed as costs). Additionally,
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Pursuant to Jones v. Unysis, 54 F.3d 624, 632 (10th Cir. 1995), copies that are not reasonably necessary or made for the attorney's convenience are not taxable. -5-

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Request Nos. 4 and 5 (totaling $1,361.25) comprise copies of documents that were not even presented to the Court for use in considering Defendants' Joint Motion for Summary Judgment, and therefore, not taxable to Mr. Friedland. United Int'l Holdings, 174 F.R.D. at 484 (the term "for use in the case" of 28 U.S.C. § 1920 means "materials actually prepared for use in presenting evidence to the court"). CONCLUSION After a hearing on the issue, the District Clerk correctly disallowed all of GeoSyntec's requested costs because the requested transcript and copy costs were merely investigative materials, obtained in the normal course of discovery, and not "necessarily obtained" or "used in the case" to terminate the litigation. This decision is consistent with the specific requirements of 28 U.S.C. § 1920. Accordingly, GeoSyntec's Motion for Review should be denied. DATED this 3rd day of April, 2008.

s/ Perry L. Glantz John D. Fognani, Esq. Perry L. Glantz, Esq. Fritz W. Ganz, Esq. Fognani & Faught, PLLC 1700 Lincoln Street, Suite 2222 Denver, CO 80203 Telephone: 303-382-6200 Fax: 303-382-6210 Email: [email protected] Attorneys for Plaintiff

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CERTIFICATE OF SERVICE I hereby certify that on this 3rd day of April, 2008, a true and correct copy of the foregoing RESPONSE IN OPPOSITION TO GEOSYNTEC'S MOTION TO REVIEW TAXATION OF COSTS was electronically filed via ECF with the U.S. District Court for the District of Colorado and served electronically or via first-class U.S. mail on the following: Jon Bernhardt, Esq. [email protected] [email protected] [email protected] Colin C. Deihl, Esq. [email protected] [email protected] Leslie A. Eaton, Esq. [email protected] [email protected] [email protected] Marian Lee, Esq. [email protected] Steven M. Kelso, Esq. [email protected] [email protected] Terence M. Ridley, Esq. [email protected] [email protected]

Delmar R. Ehrich, Esq. [email protected] Faegre & Benson, LLP-Minneapolis 90 S. 7th Street Wells Fargo Center, #2200 Minneapolis, MN 55402-3901 Paul J. Sanner, Esq. [email protected] Hanson, Bridgett, Marcus, Vlahos & Rudy, LLP 333 Market Street, Suite 2100 San Francisco, CA 94105-212

/s Janyce L. Lee