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January 29, 1985

ROBERT A. FROSCH, Administrator of NASA, Defendant

Robinson, Chief Judge

The opinion of the court was delivered by: ROBINSON

Presently before the Court is Plaintiff's Motion for Review of Taxation of Costs assessed by the Clerk of the Court. The motion evolves out of an age discrimination suit and subsequent petition for attorneys' fees and costs. Following a successful appeal, 680 F.2d 248, of this Court's grant of summary judgment for Defendant, 515 F. Supp. 1260, and shortly before the case would have proceeded to trial, the parties entered into a court-approved settlement agreement which afforded Plaintiff substantial relief and which expressly provided that he was entitled to an award of attorneys' fees and costs.

 The Clerk allowed only $ 2,910.42. In the instant motion for review of this calculation, Plaintiff requests the Court to order an additional payment of $ 3,521.51. This amount includes $ 3,085.00 in expert witness fees, $ 101.76 for deposition costs and $ 334.75 for photocopying expenses.

 Before considering Plaintiff's motion to review and award these additional costs, the Court first notes that Fed. R. Civ. P. 54(d) creates a strong presumption favoring the taxation of costs against the losing party. Sun Ship, Inc. v. Lehman, 211 U.S. App. D.C. 81, 655 F.2d 1311 (D.C. Cir. 1981). However, this presumption extends only to those items for which there is statutory authority. Zdunek v. WMATA, 100 F.R.D. 689 (D.D.C. 1983). While the Court may, in its discretion, award non-statutory costs reasonably incurred, the Court must also be mindful of the Supreme Court's admonition in Farmer v. Arabian American Oil Co., 379 U.S. 227, 235, 13 L. Ed. 2d 248, 85 S. Ct. 411 (1964): "We do not read that Rule [54(d)] as giving district judges unrestrained discretion to tax costs to reimburse a winning litigant for every expense he has seen fit to incur in the conduct of his case. Items proposed by winning parties as costs should always be given careful scrutiny."

 For the reasons set forth below and upon a careful review of the Clerk's assessment of costs and the record in this case, the motion to review taxation of costs is granted with respect to photocopying and deposition costs, costs specified in the governing statute, and denied with respect to the non-statutory costs for expert witness fees.


 Expenditures made in obtaining copies of depositions are taxable as costs pursuant to 28 U.S.C. §§ 1920(2) and (4). The authorizing statute allows for the taxation of costs for fees of the court reporter, exemplification and copies of papers "necessarily obtained for use in the case." In addition to the statutory restriction of costs to those depositions "necessarily obtained," the Clerk restricts the assessment of deposition costs to those which are properly noticed and filed with the Court. See Clerk's Supplemental Manual Issuance No. 33. The depositions giving rise to Plaintiff's request for $ 101.76 were taken by Defendant of Plaintiff's experts. Defendant did not notice or file the depositions with the Court; for this reason, the Clerk disallowed the cost.

 Plaintiff petitions for review of the Clerk's disallowance of this amount, contending that the cost was reasonably incurred. Depositions which are used at trial are presumed to have been necessarily obtained. However, a case need not proceed to trial in order for a deposition to be "necessarily obtained" within the meaning of the statute. Jeffries v. Georgia Residential Finance Authority, 90 F.R.D. 62 (N.D. Ga. 1981). It would indeed be harsh to penalize Plaintiff for having managed to settle his complaint favorably without resort to trial and the use of the depositions as evidence. Instead, the Court has discretion in determining whether or not the depositions were "necessarily obtained" in light of all the circumstances. Neely v. General Electric Co., 90 F.R.D. 627 (E.D. Tenn. 1981).

 It would also be harsh to penalize Plaintiff because Defendant failed to notice and file depositions with the Court. It is clear that since the cost requested involved depositions noticed and taken by the losing party, it was not within the prevailing party's control to comply with the practice of the Clerk's Office. Accordingly, Plaintiff will be allowed to recover an additional award for deposition costs of $ 101.76.


 Therefore, it is the Court's determination that it "should not second-guess the attorneys' decision" regarding copies of papers and documents. Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624, 642 (6th Cir. 1979). The case was competently and successfully resolved in favor of Plaintiff. ...

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