important cases while the fee petition was pending, necessitating additional briefings and other submissions by the parties.
Even taking all of the above circumstances into consideration, however, we believe that the amount requested by petitioners is unreasonable, for several reasons. First, and most importantly, the task actually accomplished by the documents submitted in terms of information actually gathered and conveyed to the Court should not have taken the amount of time claimed by petitioners. The very same information could have been documented in far less time and with far fewer submissions. Instead, the petitioners were somewhat inefficient and duplicative in preparing the materials in support of the fee petition. For example, many matters which were challenged by defendants, and thus had to be addressed in plaintiff's reply brief, were matters which could have been met by using more careful documentation in the first instance.
Second, petitioners' submissions were inadequate in crucial respects. Petitioner submitted approximately nine documents to the court, for a total of approximately 119 pages, of which four documents were legal memoranda. Nonetheless, at the time of the hearing, this Court had still not obtained a computer printout containing a breakdown of the total hours expended to date. In fact, we had to request at the hearing that this document be forwarded to us. Furthermore, at no time have petitioners ever submitted a single document which contains a breakdown of the entirety of the fee request; rather, this information is scattered throughout several documents. Therefore, in order to calculate the amount of time attributable to each attorney and allocable to the fee petition and the litigation on the merits, it has been necessary to cull data from four or five documents. A similar problem exists with respect to costs. It appears to this Court that, at the very least, an adequately prepared fee petition should contain this kind of information all in one comprehensive document.
Finally, even if we assume that all the documentation actually submitted was "adequate" and "reasonably necessary" to the adjudication of the fee petition, we cannot conceive that the preparation of the documents should have reasonably consumed 164.7 hours. Although we do not have a detailed breakdown of the allocation of these hours, we do know that the preparation of one document, Plaintiff's Reply Memorandum, required 62.8 hours of Faye Cohen and Alan Lerner's time. This document consists of thirty-nine pages, plus several exhibits. The memo itself contains largely factual argument, with little legal discussion. We conclude that an expenditure of 62.8 hours on this one document alone is unreasonable. We cannot help but infer from the circumstances surrounding the preparation of this document that the time spent on other documents was likewise excessive.
Therefore, we will subtract fifty hours from the amount submitted, which hours shall be proportionately subtracted from the totals of each of the three persons involved in preparing the fee petition. A total award of $ 4,167.00 will be made as compensation for time reasonably necessary to the preparation of this fee petition. We believe that this amount is very generous.
Petitioners also request an award of $ 9,012.69 for costs expended in the litigation at hand. Defendant concedes that petitioners are entitled to costs pursuant to the ADEA, but contests many of the specific requests made by petitioners. Many of the costs requested are not "costs" as that term is used in 28 U.S.C. § 1921, but are in fact out-of-pocket expenses. Finding no statutory authorization for reimbursement of these expenses,
we will deny petitioners' requests with respect to these items, including Lexis fees, telephone charges, travel expenses, and the cost of meals and exhibits.
Also falling within this category is the request for expert witness fees, especially where, as here, none of the experts actually testified at trial. Even where an expert witness does testify at trial, the general rule is that "the compensation paid . . . in excess of the statutory per diem fee, mileage and subsistence allowance . . . is not taxable" as costs. J. Moore, 6 Federal Practice P 54.77(5. 3). There have been exceptions made to this rule in cases where the expert's testimony was "helpful to the Court and played an important role in the resolution of the issues." See, e.g., Commonwealth of Pennsylvania v. O'Neill, 431 F. Supp. 700, 713 (E.D.Pa.1977), and cases cited therein. However, this exception would not apply where the expert does not testify at trial. Therefore, we will disallow the amount requested by plaintiffs as reimbursement for expert witness fees.
Defendant also challenges the taxing as costs of witness fees for those witnesses who did not actually testify at trial. Witness fees are taxable as costs if the witness' testimony is reasonably necessary to the disposition of the case. C. Wright & A. Miller, 10 Federal Practice & Procedure § 2678 (1973). Although it is ordinarily the rule that no fees may be allowed for witnesses who do not testify at trial, this presumption may be overcome if it is shown that their testimony was rendered unnecessary by the occurrence of some extrinsic circumstance. Id. We find that, with respect to William Love, plaintiff has made this showing. Mr. Love did not actually testify because a stipulation of counsel made his testimony unnecessary. We conclude that this is the kind of situation where the fee for a non-testifying witness should be permitted, and the fee for Mr. Love will be allowed. The fees for other non-testifying witnesses are not allowed.
Finally, defendant requests that the fee for the transcript of Dr. Andrisani's deposition not be allowed as costs. Transcripts of depositions are usually taxable as costs at the court's discretion. C. Wright & A. Miller, 10 Federal Practice & Procedure § 2676 (1973). However, defendants contend that this deposition transcript should not be taxed as costs because of the circumstances surrounding the deposition of Dr. Andrisani as described above. We disagree. We have previously found that Mr. Lerner's conduct in connection with this matter was proper. The deposition of Dr. Andrisani was taken at defendant's request and by order of the court during trial. We conclude, therefore, that the deposition was reasonably necessary to the conduct of this case.
Finally, we will allow as costs for preparation of the fee petition an amount of $ 362.00. This amount compensates petitioners for the transcripts for the depositions taken by defendant, and includes reimbursement for the time incurred by Patrick Kittredge, Esquire during his deposition. The remaining requests for costs will be denied, either because the information provided to us in support of these requests was insufficient
or because we do not believe that the expense incurred was reasonably necessary in the pursuit of a reasonable attorney's fee.
In addition, the Dilworth firm has petitioned the court for an award of costs in the amount of $ 281.19. This award is not opposed by the defendant. We have examined the petition and believe that all of the items requested as costs are appropriate. We therefore, grant this request.