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Forest Laboratories, Inc. v. Abbott Laboratories

May 16, 2006

FOREST LABORATORIES, INC. AND ONY, INC., PLAINTIFFS,
v.
ABBOTT LABORATORIES AND TOKYO TANABE CO., LTD., DEFENDANTS.



The opinion of the court was delivered by: William M. Skretny United States District Judge

DECISION AND ORDER

I. INTRODUCTION

Currently before the Court are the objections of defendants, Abbott Laboratories and Tokyo Tanabe Co. (hereinafter referred to collectively as "the defendants"), to the bill of costs submitted by plaintiffs, Forest Laboratories, Inc., and ONY, Inc. (hereinafter referred to collectively as "the plaintiffs").*fn1

II. DISCUSSION

Rule 54(d)(1) of the Federal Rules of Civil Procedure provides that "costs . . . shall be allowed as of course to the prevailing party unless the court otherwise directs." The costs properly taxable under Rule 54(d)(1) are enumerated in 29 U.S.C. § 1920. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441 (1987). While only those costs enumerated in § 1920 are allowed, the breadth of the phrases used in § 1920 to describe recoverable costs is left to the discretion of the court. See Weeks v. Samsung Heavy Indus. Co, 126 F.3d 9265, 945 (7th Cir. 1997) (citation omitted). Under Rule 54(d), "the prevailing party has the burden of establishing that the expenses [it] seeks to have taxed as costs are authorized by applicable federal law, including proof of necessity and reasonableness under 28 U.S.C. § 1920." Berryman v. Hofbauer, 161 F.R.D. 341, 344 (E.D. Mich. 1995) (citation omitted). To meet this burden, the prevailing party must present sufficient evidence to show that each of the costs it has requested to be taxed was "reasonably necessary" and not for the "mere convenience of counsel." Id. at 344 n. 2.

A. Transcript Costs

Defendants oppose the costs requested for daily transcript, full length or condensed ("mini-scripts"), and for computer diskettes of the trial testimony. Under 28 U.S.C. § 1920(2), a prevailing party can only recover the costs of stenographic services "necessarily obtained for use in the case." Courts have interpreted § 1920(2) to preclude the costs associated with transcripts that were merely for the convenience of counsel, rather than necessary for use in the case. See, e.g., Galella v. Onassis, 487 F.2d 986, 999 (2d Cir. 1973).

Here, the Court finds that the cost associated with daily transcripts was a necessary cost and, therefore, should be granted to the prevailing party. The Court's review of the file indicates that this was a complex patent case that lasted eleven weeks and involved the detailed testimony of 23 fact and expert witnesses on numerous technical issues. The availability of daily trial transcripts was essential to the parties' preparation and presentation of their respective cases. Accordingly, the Court grants the costs associated with daily transcript. See Manildra Milling Corp. v. Ogilvie Mills, Inc., 76 F.3d 1178, 1184 (Fed. Cir. 1996).

The Court denies, however, the costs associated with the mini-scripts and diskettes. The Court finds that these items were obtained solely for the convenience of counsel and were not necessary for use in the case.

B. Costs of Deposition Transcripts

The defendants oppose costs associated with certain deposition transcripts. Defendants argue that such costs are not fully taxable for two reasons: (1) plaintiffs have not demonstrated that many of the depositions were "reasonably necessary" at the time they were taken; and (2) plaintiffs have not offered a reasonable justification for taxing defendants the extraordinary costs associated with the expedited delivery of many of the deposition transcripts.

"[T]he proper inquiry is whether, at the time the deposition was taken, it appeared to be reasonably necessary." Anderson v. City of New York, 132 F.Supp.2d 239, 246 (S.D.N.Y. 2001) (citations omitted); see also Manildra, 76 F.3d at 1184 ("The underlying inquiry is whether the depositions reasonably seemed necessary at the time they were taken."); see also Boisson v. Banian, Ltd., 221 F.R.D. 378, 380 (E.D.N.Y. 2004) ("the costs of deposition transcripts are properly taxed as costs only where such transcripts are obtained for use at trial and not solely for discovery purposes and the convenience of counsel").

Plaintiffs seek reimbursement for six depositions of individuals who did not testify, and whose depositions were not read or even mentioned at trial.*fn2 Plaintiffs have failed to show why these depositions were reasonably necessary at the time they were taken. Accordingly, the Court denies plaintiffs' request for costs associated with these six depositions.

With regard to plaintiffs' requests for the costs associated with certain expedited deposition transcripts, the Court notes that many of the depositions were taken during the trial, often only one or two days before the witness was expected to testify. Other depositions were taken within the last few weeks before trial was scheduled to begin, including the depositions of defendants' first two witnesses to take the stand. The Court finds that the timing of these depositions justifies the costs associated with expedited transcripts. Accordingly, the Court grants the costs associated with the following expedited transcripts: Wilson, Scherer, Murphy, Barry, Solomon, Stanfield, Schurch, ...


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