DOJ DUNS TOBACCO $1.9M IN TRIAL COSTS

October 7, 2006 12:23 pm by Gene Borio

Text follows of:

DOJ’s Bill of Costs

Bill of Costs Memorandum

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

United States

V.

PHILIP MORRIS USA INC.,

f/k/a PHILIP MORRIS INC., et al.,

Case Number: 99-CV-02496 (GK)

BILL OF COSTS

Judgment having been entered in the above entitled action on August 17, 2006 against Joint Defendants (date) the Clerk is requested to tax the following as cost:

Fees of the Clerk….. $

Fees for service of summons and subpoena….. $100.38

Fees of the court reporter for all or any part of the transcript necessarily obtained for use in the case $296,299.63

Fees and disbursements for printing…..

Fees for witnesses (itemize on reverse side)….. $3,277.20

Fees for exemplification and copies of papers necessarily obtained for use in the case…………….. $126,458.74

Docket fees under 28 U.S.C. 1923…..

Costs as shown on Mandate of Court of Appeals…..

Compensation of court-appointed experts…..

Compensation of interpreters and costs of special interpretation services under 28 U.S.C. 1828…

Other costs (please itemize)…..Deposition Costs $500,693.21

Special Master Costs $1,004,152.81

TOTAL $1,930,981.97

SPECIAL NOTE: Attach to your bill an itemization and documentation for requested costs in all categories.

DECLARATION

I declare under penalty of perjury that the foregoing costs are correct and were necessarily incurred in this action and that the services for which fees have been charged were actually and necessarily performed. A copy of this bill was mailed today with postage prepaid to: .

Signature of Attorney: /s/ Carolyn I. Hahn

Name of Attorney: Carolyn I. Hahn

For: Alberto Gonzales Date: 10/2/06

Name of Claiming Party

Costs are taxed in the amount of and included in the judgement.

NANCY MAYER-WHITTINGTON, Clerk By: Date:

Deputy Clerk

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WITNESS FEES (computation, cf. 28 U.S.C. 1821 for statutory fees)

ATTENDANCE

(see witness voucher)

SUBSISTENCE

(see witness voucher)

Transportation

(see witness

voucher)

NAME AND RESIDENCE Days Total

Cost

Days Total

Cost

Days Total

Cost

Total Cost

Each Witness

John Rupp

Mary Elizabeth Ward

Arthur Stevens

\ $2,047.50

$273.00

$956.70

TOTAL 3,277.20

NOTICE

Section 1924, Title 28, U.S. Code (effective September 1, 1948) provides:

“Sec. 1924. Verification of bill of costs.”

“Before any bill of costs is taxed, the party claiming any item of cost or disbursement shall attach thereto an affidavit, made by himself or by his duly authorized attorney or agent having knowledge of the facts, that such item is correct and has been necessarily incurred in the case and that the services for which fees have been charged were actually and necessarily performed.”

See also Section 1920 of Title 28, which reads in part as follows:

“A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.”

The Federal Rules of Civil Procedure contain the following provisions:

Rule 54(d)

“Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs, but costs against the United States, its officers, and agencies shall be imposed only to the extent permitted by law. Costs may be taxed by the clerk on one day’s notice. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court.”

Rule 6(e)

“Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon him by mail, 3 days shall be added to the prescribed period.”

Rule 58 (In Part)

“Entry of the judgment shall not be delayed for the taxing of costs.

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Bill of Costs Memorandum

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________

UNITED STATES OF AMERICA,

Plaintiff,

and

TOBACCO-FREE KIDS ACTION FUND, AMERICAN CANCER SOCIETY, AMERICAN) HEART ASSOCIATION, AMERICAN LUNG ASSOCIATION, AMERICANS FOR NONSMOKERS’ RIGHTS, and NATIONAL AFRICAN AMERICAN TOBACCO PREVENTION NETWORK

Intervenors,

v.

PHILIP MORRIS USA INC., f/k/a PHILIP MORRIS INC., et al.,

Defendants.

Civil No. 99-CV-02496 (GK)

Next court appearance: (none scheduled)

_________________________________________

MEMORANDUM IN SUPPORT OF THE UNITED STATES’ BILL OF COSTS

Pursuant to LCvR 54.1, Fed. R. Civ. P. 53(h) and 54(d)(1), federal statutes, and this Court’s August 17, 2006 Order awarding costs, the United States respectfully submits this memorandum in support of its Bill of Costs. As detailed below, the costs for which the United States seeks reimbursement are supported by the local rules of this Court, the Federal Rules of Civil Procedure, federal statutes, and existing case law. Along with the Bill of Costs and this memorandum, the United States is submitting a detailed spreadsheet which supports each category of costs authorized by LCvR 54.1, attached hereto as Exhibit A.

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I. Legal Authority

Under Federal Rule of Civil Procedure 54(d)(1), “costs other than attorneys’ fees shall be allowed as of course to the prevailing party unless the court otherwise directs.”1 28 U.S.C § 1920 outlines the specific costs which may be awarded to the prevailing party.2 Local Rule 54.1(d) expands upon 28 U.S.C. § 1920, and enumerates fourteen specific categories of costs that may be awarded to the prevailing party:

When requested to do so in the bill of costs, the Clerk shall tax the following costs:

(1) Clerk’s fees;

(2) costs of service of summons and complaint;

(3) Marshal’s fees and expenses specified in 28 U.S.C. § 1921;

(4) docket fees and costs specified in 28 U.S.C. § 1923;

(5) the cost of a bond or other security furnished by reason of a statute, court order or rule;

(6) the costs, at the reporter’s standard rate, of the original and one copy of any deposition noticed by the prevailing party, and of one copy of any deposition noticed by any other party, if the deposition was used on the

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1 Moore v. Nat. Assoc. of Secs. Dealers, Inc. 762 F.2d 1093, 1107 (D.C. Cir. 1985) (”Costs are accorded to prevailing litigants . . . under Rule 54(d) of the Federal Rules of Civil Procedure”); Hoska v. United States Dept. of the Army, 694 F.2d 270, 272 (D.C. Cir. 1982)(”prevailing parties entitled to an award of costs as a matter of course save only to the extent that the court might direct otherwise”)(internal citations and quotations omitted).

2 28 U.SC. §1920 provides:

A judge or clerk of any court of the United States may tax as costs the following:

(1) Fees of the clerk and Marshal;

(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;

(3) Fees and disbursements for printing and witnesses;

(4) Fees for exemplification and copies of papers necessarily obtained for use in the case;

(5) Docket fees under section 1923 of this title;

(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1928 of this title.

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record, at a hearing or trial;

(7) the cost, at the reporter’s standard rate, of the original and one copy of the reporter’s transcript of a hearing or trial if the transcript: (I) is alleged by the prevailing party to have been necessary for the determination of an appeal within the meaning of Rule 39(e), Federal Rules of Appellate Procedure, or (ii) was required by the court to be transcribed;

(8) costs of copying those exhibits which are introduced into evidence, are used for impeachment, or are filed with the Clerk;

(9) other costs of copying up to $300.00;

(10) witness fees pursuant to 28 U.S.C. § 1821(b), and travel and subsistence costs pursuant to 28 U.S.C. § 1821©, paid to each witness who testified at a hearing or trial;

(11) costs of service of a subpoena on a witness who testified at a deposition, hearing or trial;

(12) fees of court-appointed experts, fees of interpreters used at a trial or hearing, and fees and expenses of special interpretation services under 28 U.S.C § 1828;

(13) any costs of the kind enumerated in this Rule which were incurred in the District of Columbia courts prior to removal which are recoverable under the rules of the District of Columbia Court of Appeals and the Superior Court of the District of Columbia; 14) costs as shown on the mandate of the court of appeals.

Local Rule 54.1(d). The United States is also seeking its share of the Special Master’s fees in this litigation pursuant to Rule 53 of the Federal Rules of Civil Procedure and Order #41, which appointed a Special Master in this case. The United States only requests those costs expressly permitted by statute or the Local Rules of this Court.

II. Specific Costs Claimed by the United States

Marshal’s Fees and Expenses

Pursuant to LCvR 54.1(d)(3) and 28 U.S.C. §1921, the United States is seeking the costs

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of marshal’s fees and expenses. 28 U.S.C §1921(a)(1) provides that, the “United States marshals . . .shall routinely collect, and a court may tax as costs, fees for . . . serving . . . summons, complaints, . . . [f]orwarding any writ, order or process to another judicial district for service. . . [and] serving a subpoena or summons for a witness.” (emphasis added). In addition, a court may tax as costs fees for “[n]ecessary travel in serving or endeavoring to serve any process.” 28 U.S.C. §1921(a)(1)(G). Thus, the United States is entitled to seek marshal’s fees and expenses in its Bill of Costs.

Deposition Transcripts & Exhibits

Pursuant to LCvR 54.1(d)(6), the United States is seeking the cost of the original and one copy of the depositions it noticed in this case, and the cost of one copy of depositions noticed by other parties in the case. Butera v. District of Columbia, 83 F.Supp.2d 25, 40 (D.D.C. 1999) rev’d on other grounds, 235 F.3d 637 (D.C. Cir. 2001) (“LcvR 54.1(d)(6) allows for the recovery of the original and one copy of a transcript at the reporters standard rate”); OAO Alfa Bank v. Center for Public Integrity, 2006 WL 1313309 at *4 (D.D.C. May 12, 2006) (awarding costs for deposition transcripts pursuant to Local Civil Rule 54.1(d)(6)). Included in the costs submitted by the United States for depositions are the costs for the exhibits attached to the depositions. OAO Alfa Bank, 2006 WL at 1313309 at *4 (“the costs of exhibits attached to the deposition are recoverable because they are essential to the deposition transcript”).

Trial & Hearing Transcripts

Pursuant to LcvR 54.1(d)(7) and 28 U.S.C. § 1920(2), the United States is seeking the costs of daily trial transcripts and the cost of the transcripts of the pretrial hearings in front of this Court, as well as Special Master Levie, which were necessarily obtained for use in this case.

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As the Court noted in its Final Opinion, the Government’s RICO case against the tobacco industry has been described as “the largest piece of civil litigation ever brought.” United States v. Philip Morris USA, Inc., et al., — F.Supp.2d —-, 2006 WL 2380632 at *9 (D.D.C. August 17, 2006). Given the breadth and complexity of the this litigation, which began with the filing of the complaint in 1999, it is beyond dispute that transcripts of the hearings and the trial were necessary . Machesney v. Bruni, 905 F. Supp. 1122, 1137 (D.D.C. 1995) (“As a general rule, in complex litigation trial transcripts are necessary to ensure a well presented case”). These transcripts not only served as a record of witness testimony over the course of the nine month trial, but also served as a written record of the numerous oral rulings issued by the Court and the Special Master throughout the course of the litigation.

Courts frequently award the costs of transcripts of pretrial hearings and conferences in complex cases, and in circumstances where transcripts are necessary to record oral rulings and prepare for trial. Majeske v. City of Chicago, 218 F.3d 816, 825 (7th Cir. 2000) (upholding district court’s award of costs for transcripts of court proceedings where prevailing party represented that transcript was necessary to record court’s oral rulings); Independent Iron Works, Inc. v. United States Steel Corp., 322 F.2d 656, 677 (9th Cir. 1963) (upholding lower court’s award of costs of pretrial transcripts in complex antitrust case involving ten defendants and 15 pretrial hearings which “covered a multitude of matters, including advisory rulings by the court, discussion of issues and the trial agenda”); Symantec Corp. v. CD Micro, Inc., 2005 WL 1972563 at *2 (D. Or. Aug. 12, 2005) (“Pretrial transcripts are especially necessary when the case is unusually involved and complex”); FMC Corp. v. United States, 1994 WL 548212 at *1 (N.D. Ill. Oct. 6, 1995) (“A party may recover the cost of preparing transcripts of pretrial

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proceedings if the case is complex and . . . [h]aving a transcript of these proceedings was also important to provide the parties with a written record of the court’s oral rulings on several pretrial motions”); Pincipe v. McDonald’s Corp. et al., 95 F.R.D. 34, 36-37 (E.D. Va. 1982) (costs of pretrial transcripts awarded where “throughout the pretrial conferences the parties made concessions to one another, reached agreements and stipulations with one another, identified, withdrew, proffered and altered exhibits to meet objections from one another, while the Court ruled on motions, objections, and proposals of the parties”); United States v. Bexar County et al., 89 F.R.D. 39, 392 (W.D. Tex. 1981) (awarding costs pursuant to 29 U.S.C. §1920 and Fed. R. Civ. P. 54(d) for transcripts of four pretrial hearings which were “necessary for preparation of trial”).

Daily trial transcripts were unquestionably necessary given the length and complexity of the trial. Holmes v. Cessna Aircraft Co., 11 F.3d 63, 64 (5th Cir. 1994) (costs of a daily transcript of trial may be awarded to prevailing party where they are “necessarily obtained for use in the case”); Gallela v. Onassis, 467 F.2d 986, 999 (2d Cir. 1973) (same); Machesney, 905 F. Supp. 1137 (approving cost of daily trial transcript which the court described as a “virtual necessity in order to ensure a ‘well tried’ case in which the lawyers are fully informed”); Burton v. R.J. Reynolds Tobacco Co., 395 F.Supp.2d 1065, 1078-1079 (D. Kan. 2005) (awarding to plaintiff his share of the cost of daily trial transcript in a products liability personal injury case against tobacco manufacturer: “[t]his case was sufficiently lengthy, complex, and contentious that the court is persuaded that the cost of a daily transcript was reasonably necessary to plaintiff’s trial preparation”); Charter Medical Corp. v. Cardin, 127 F.R.D. 111, 113 (D. Md 1989) (prevailing parties entitled to recover cost of daily transcripts in case where the issues were “complex”).

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In addition, daily transcripts were necessary for the United States to be able to submit its proposed findings of fact and conclusions of law, which were required by the Court. Studiengesellschaft Kohle v. Dart Indus. Inc., 1989 WL 71757 at *2-3 (D. Del. Jun. 21, 1989) (awarding cost of transcript where “required Findings of Fact and Conclusions of Law and the post-trial papers on the damages issue could not have been adequately presented without reference to the transcript”); Electronic Speciality Co. v. Int. Controls Corp., 47 F.R.D. 158, 161 (S.D.N.Y. 1969) (transcript necessary where parties were required to submit proposed findings of fact and conclusions of law)3.

The United States is also seeking, pursuant to LCvR 54.1(d)(7) and 28 U.S.C. § 1920(2), the cost of providing copies of the written directs for the witnesses it called during trial. In lieu of having witnesses present their direct testimony in person, the Court required the direct testimony of the witnesses called by each party to be submitted in writing. Order #471 at 5-6. Thus, the written directs constitute the trial record of what the witnesses testified to on direct examination. The copying costs for the written directs, therefore, are comparable to the costs that would have been expended for a court reporter to transcribe the witnesses’ direct testimony.

Costs of Copying Exhibits Introduced at Trial

Pursuant to LCvR 54.1(d)(8), the United States is seeking the costs of copying those exhibits introduced into evidence at trial. Specifically, the United States is seeking the costs of providing three (3) copies of each exhibit it introduced into evidence at trial. The Court in Order #471 explicitly stated that each party “offering an exhibit at trial shall produce one premarked

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3 Included as part of the trial transcript costs, is the cost of transcribing the testimony of two witnesses oversees, Andrew Foyle and Nicholas Cannar. Their trial testimony was taken pursuant to Letters of Request issued by this Court.

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original/copy for the Court, one copy for the Courtroom Clerk, one copy for the Law Clerk, one copy for the witness, and one copy for each Joint Defendant if so requested.” Order #471 at 12.4 Thus, the United States is entitled to recover the cost of providing three copies of each exhibit it introduced at trial. Butera, 83 F.Supp. at 40 (“Under LCvR 54.1(d)(8), costs may be recovered for ‘copying those exhibits that are introduced into evidence’”); See also OAO Alfa Bank , 2006 WL 1313309 at *4 (awarding copying costs pursuant to LCvR 54.1(d)(8)).

The United States, pursuant to LcvR 54.1(d)(8), is also seeking the costs incurred in providing color copies of witnesses’ prior testimony it introduced into evidence. Color copies of prior testimony were necessary because the Court required the party offering the prior testimony to “highlight those portions to be introduced into evidence in red, and the party designating transcript portions in opposition, shall highlight their counterdesignations in blue.” Orders #471 at 10 and Order #471D at 2. The Court mandated that these submissions of prior testimony would “be entered into the record as an exhibit.” Id. Thus, with the exception of the nature and number of copies required, the Court did not distinguish between the submission of prior testimony into the record and the introduction of exhibits into evidence.

Witness Fees and Expenses

Pursuant to LCvR 54.1(d)(10), the United States seeks in its Bill of Costs the fees and travel expenses it paid to witnesses pursuant to 28 U.S.C. § 1821 (b) and ©. As noted supra, LCvR 54.1(6)(10) explicitly refers to 28 U.S.C. § 1821. Under 28 U.S.C. § 1821(b), witnesses who testify at trial are entitled to receive “an attendance fee of $40 per day for each day’s attendance.” 28 U.S.C. § 1821 © provides that a “witness who travels by common carrier shall

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4 Although Order #471 provided for a minimum of five copies of each exhibit, the practice at trial was to provide three copies of each exhibit.

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be paid for the actual expenses of travel on the basis of the means of transportation reasonably utilized,” and states that “[a]ll normal travel expenses within and outside the judicial district shall be taxable as costs pursuant to section 1920 of this title.” Therefore, the United States is entitled to seek in its Bill of Costs the fees and travel expenses it paid under 28 U.S.C. § 1821 to witnesses who appeared at trial.

Special Master’s Fees

The United States seeks in its Bill of Costs its share of the Special Master’s fees in this litigation pursuant to Fed. R. Civ. P. 53. “The Court must allocate payment of the master’s compensation among the parties . . . An interim allocation may be amended to reflect a decision on the merits.” Fed. R. Civ. P. 53(h) (emphasis added); Aird v. Ford Motor Co., 86 F.3d 216, (D.C. Cir. 1996) (“Rule 53 vests the district court with authority to allocate master’s fees in favor of the prevailing party”); Roy v. County of Lexington South Carolina, 141 F.3d 533, 549 (4th Cir. 1998) (“courts have construed a special master’s fees as ‘costs’ under the Federal Rules of Civil Procedure”).

When the Court appointed a Special Master in December, 2000, the Court required that the United States be responsible for paying “one-half of the Master’s fees and expenses.” Order #41 at 3. However, the Court went on to explicitly state that “[f]inal allocation of these [special master fees and expenses] shall be subject to taxation of costs at the conclusion of the case at the discretion of the Court.” Id. (emphasis added). Thus, the Court clearly intended that Special Master’s fees and costs would ultimately be included in the prevailing party’s bill of costs. As such, the United States is entitled to those costs.

CONCLUSION

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For the foregoing reasons, the United States should be awarded the full amount of the costs for which it seeks reimbursement in its Bill of Costs. As demonstrated above, the United States is only seeking reimbursement for those costs specifically enumerated under the Local Rules, federal statutes, and the Federal Rules of Civil Procedure.

Dated: October 2, 2006

Washington, DC

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Respectfully submitted,

PETER D. KEISLER

Assistant Attorney General

/s/ Stuart Schiffer

STUART SCHIFFER

Deputy Assistant Attorney General

/s/ Linda M. McMahon

LINDA M. McMAHON (DC Bar No. 446130)

/s/ Carolyn I. Hahn

CAROLYN I. HAHN

United States Department of Justice

Post Office Box 14524

Ben Franklin Station

Washington, DC 20044-4524

(202) 616-4185

Attorneys for Plaintiff

United States of America

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