Fressell v. AT & T Technologies, Inc.

80 A.L.R. Fed. 155, 103 F.R.D. 111, 42 Fair Empl. Prac. Cas. (BNA) 44, 40 Fed. R. Serv. 2d 124, 1984 U.S. Dist. LEXIS 23777
CourtDistrict Court, N.D. Georgia
DecidedSeptember 7, 1984
DocketCiv. A. No. C 82-699 A
StatusPublished
Cited by31 cases

This text of 80 A.L.R. Fed. 155 (Fressell v. AT & T Technologies, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fressell v. AT & T Technologies, Inc., 80 A.L.R. Fed. 155, 103 F.R.D. 111, 42 Fair Empl. Prac. Cas. (BNA) 44, 40 Fed. R. Serv. 2d 124, 1984 U.S. Dist. LEXIS 23777 (N.D. Ga. 1984).

Opinion

ORDER

VINING, District Judge.

The defendant in this age discrimination case requested the clerk to tax the following costs against the unsuccessful plaintiffs:

Fees for witnesses $1,035.00
Fees for exemplification and 1,232.25 copies of papers necessarily obtained for use in case
Docket fees under 28 U.S.C. § 77.50 1923
Costs incident to taking of 2,218.05 depositions
Costs of videotaping and playback 644.63 of deposition of L.O. Walser
LEXIS research . 1,242.43
TOTAL $6,449.43

The plaintiffs object to the inclusion of the following items in the taxation of costs: the expense of computer-assisted legal research (LEXIS), the charges for photocopying (which are given only as monthly totals), the expense of videotaping a deposition and showing the videotape at trial, the actual airline fare of a witness traveling a distance greater than 100 miles to the place of trial, and the amounts for certain depositions. This court is authorized under Rule 54(d) of the Federal Rules of Civil Procedure to review the clerk’s taxation of costs and will consider each of the plaintiffs’ objections separately.

A. Computer-Assisted Legal Research

As justification for its submission of its LEXIS time in this matter, the defend[113]*113ant has pointed out that it believes costs of computer research are taxable in this district and cites as its authority O’Donnell v. Georgia Osteopathic Hospital, Inc., 99 F.R.D. 578 (N.D.Ga.1983). The O’Donnell case, like the case sub judice, was brought under the Age Discrimination in Employment Act, but in that case, as a successful plaintiff, O’Donnell had a statutory right to an award of attorney’s fees as well as costs. Judge Hall awarded attorney’s fees in a related case at 99 F.R.D. 576 (N.D.Ga.1983), awarded costs at 99 F.R.D. 578 (N.D.Ga.1983), and refused to disallow the expense of computer research although the plaintiff had included that item in her bill of costs rather than in her request for attorney’s fees. The defendant’s argument that the computer-assisted legal research item should be disallowed due to its submission as a cost was rejected by the court as a “form-over-substance” argument. Another judge in this district has declined to follow the O’Donnell case. Judge Shoob found instead that “expenses for computerized legal research fall within the rubric of attorney’s fees rather than that of costs.” Friedlander v. Nims, 583 F.Supp. 1087, 1089 (N.D.Ga.1984). This court also declines to follow O’Donnell’s “form-over-substance” reasoning.

It is vital that courts distinguish the categories of costs and attorney’s fees. A distinctive characteristic of American litigation is that each party must pay its own attorney’s fees, often a hefty sum, although the successful party may shift its costs, traditionally an insignificant sum, to the unsuccessful party. Numerous policies may underlie the American rule, see, e.g., Dowdell v. City of Apopka, 698 F.2d 1181, 1189 n. 12 (1983), but basically the American system refuses to create any disincentive for a potential litigant by saddling an unsuccessful party with major expenses incurred by his opponent. The United States Supreme Court discussed the historical development of this traditional American rule against nonstatutory allowances to the prevailing party in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), and found that the American rule “is deeply rooted in our history and our Congressional policy.” Id. at 263, 95 S.Ct. at 1624.

In keeping with the American approach, federal courts award attorney’s fees only if they are specifically authorized by statute and award costs sparingly. Costs are awarded under the authority of Rule 54(d), Federal Rules of Civil Procedure but also within the constraints of 28 U.S.C. § 1920 which 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 1828 of this title.

The restraint a judge should use in characterizing a possible item as a taxable “cost” within one of the categories of section 1920 was described by Mr. Justice Black as follows:

We do not read that Rule [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. Any other practice would be too great a movement in the direction of some systems of jurisprudence that are willing, indeed if not anxious, to allow litigation costs so high as to discourage litigants from bringing lawsuits, no matter how meritorious they might in good faith believe their claims to be. There[114]*114fore, the discretion given district judges to tax costs should be sparingly exercised with reference to expenses not specifically allowed by statute. Such a restraint in administration of the Rule is in harmony with our national policy of reducing insofar as possible the burdensome cost of litigation.

Farmer v. Arabian American Oil Co., 379 U.S. 227, 235, 85 S.Ct. 411, 416, 13 L.Ed.2d 248 (1964). Using this restrained approach in reading 28 U.S.C. § 1920, this court finds that the expense of computer-assisted legal research is not specifically allowed by any section of that statute; therefore, the defendant’s submission of LEXIS research in its bill of costs is hereby disallowed.

In the interest of clarity, this court notes that this decision is made in the ordinary context of the American rule, where costs but not attorney’s fees are recoverable. There are several cases, in addition to Friedlander v. Nims, which hold that when the successful litigant is entitled only to his costs under 28 U.S.C.

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Bluebook (online)
80 A.L.R. Fed. 155, 103 F.R.D. 111, 42 Fair Empl. Prac. Cas. (BNA) 44, 40 Fed. R. Serv. 2d 124, 1984 U.S. Dist. LEXIS 23777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fressell-v-at-t-technologies-inc-gand-1984.