The opinion of the court was delivered by: DUSEN
This action to recover $ 16,500, alleged to be due on a note was instituted in August 1949 and is now before the court on plaintiff's Motion To Review Taxation of Costs by the Clerk. The defendant filed a counterclaim, seeking recovery of over $ 150,000. Based on transactions taking place in 1949 and prior years, less the amount found to be due on the claims stated in the Complaint. After many continuances granted at the request of the parties, the case was finally tried in January 1960 (see page 3 of Memorandum Opinion Sur Motion For New Trial Under F.R.Civ.P. 59 (Document No. 32)). Most of the trial concerned the defendant's claim for more than $ 150,000., as stated in the counterclaim, which involved complex business transactions and conferences occurring more than ten years prior to the date of the trial. The jury found in favor of the plaintiff and against the defendant.
Defendant filed a Motion For New Trial, alleging numerous reasons covering 20 typed pages (Document No. 20). In April 1960, the defendant filed another Motion For New Trial Under F.R.Civ.P. 60(b) (Document No. 24).
During the trial, there was evidence of considerable bitterness between the parties, who had been former friends. The post-trial motions involved numerous alleged errors of the trial judge in ruling on evidence and in the charge, as well as claims that at specific places he participated excessively in the conduct of the trial. The credibility of the parties was the major issue to be decided by the fact finder.
I. Refusal To Tax Cost of Transcript of Proceedings During The Trial
28 U.S.C.A. § 1920(2) provides that 'fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case' may be taxed as costs. An examination of the above-mentioned post-trial motions, the elaborate briefs of the parties (Documents Nos. 23, 26, 27 and 28), and the opinions of the court disposing of the post-trial motions (Documents Nos. 32 and 33) makes clear that the stenographic transcript was necessarily obtained for use in this case, particularly in view of the defendant's first Motion For New Trial with its detailed, 20 pages of specific references to alleged errors of the trial judge. The transcript itself covered 555 pages (Documents Nos. 22a, b, and c).
Professor Moore states in his treatise:
'* * * we support the divergent line of authority recognizing that stenographic transcripts are often 'necessarily obtained for use in the case'; and that if they are, rather than a mere luxury or convenience, the trial court in the exercise of a sound discretion may tax all reasonable expenses incurred by a prevailing party in obtaining stenographic transcripts both for the court and himself. This doctrine includes the added expense for a daily transcript when the exigencies of the case warrant; otherwise not.' 6 Moore, Federal Practice, 54.77(7), p. 1375 (2nd Ed.1953).
Defendant's reliance on the right of a judge to direct the reporter to transcribe the notes taken during the trial under 28 U.S.C.A. § 753 is inappropriate in a case where the defendant himself testified of his substantial financial assets and business successes and made no request that the court direct that the notes be transcribed without cost to either party. In this case, each counsel voluntarily paid the cost of one copy of the notes of testimony. Without such payment, the notes of testimony would not have been transcribed and the ribbon copy would not have been available for the judge to use in passing on the post-trial motions. In cases such as this, where there is doubt as to whether an item is taxable as a cost of the proceeding, the batter practice would have been to bring the matter to the attention of the trial judge during the trial and ask for a ruling that such matters be included in the costs of the case. See Freedman v. Philadelphia Terminals Auction Company, supra, 198 F.Supp. at page 431.
II. Refusal To Tax Cost of Obtaining Copies of Documents
AND NOW, January 11, 1962, IT IS ORDERED that plaintiff's Motion To Review Taxation of Costs By The Clerk of Court (Document No. 45) is granted in part and the Clerk's Taxation of Costs (Document No. 44) shall be amended to include as taxable costs $ ...