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WDVA: Energy companies hash out litigation-cost awards

The prevailing party in litigation between energy companies sought to recover its litigation costs under Federal Rule of Civil Procedure 54. Among costs the court excluded were a video deposition and electronic transcripts accompanying written transcripts.


Following a jury verdict in favor of Plaintiff Consol Energy Inc., it filed a Bill of Costs in the total amount of $26,256. Defendant Gasco Drilling Inc., the losing party, has objected to certain included items.

Cost of video deposition

First, Gasco objects to the cost of a video deposition of N. Ripepi because Consol also obtained a written transcript of the deposition, Ripepi did not testify, the video of his deposition was not introduced, and Ripepi could have testified in person. Consol argues that Gasco waived these srguments by paying the cost without objection following the first trial. Consol also asserts that the video was necessary because Ripepi might have been called as a witness at trial and “counsel needed to study how he presented in his deposition for purposes of preparing for direct and cross examination.”

To recover the costs of both a video and a transcript of a deposition, the prevailing party must show that both were necessarily obtained. Consol has not met this burden, and Gasco did not waive this argument in light of remand of the first trial. Therefore, the court will exclude the $225 charge for the DVD of Ripepi’s deposition.

Expedited subpoena

Gasco further objects to the cost of expedited delivery of the subpoena of M. Jones, contending that this extra expense was incurred for the convenience of the lawyers rather than out of necessity. Consol responds that expedited delivery was necessary because Jones was deposed just three days before the deadline for motions to exclude expert testimony and for summary judgment.

The court finds that Consol has shown that the cost of expedited delivery was reasonably necessary at the time it was incurred.

Electronic transcripts

Gasco next objects to a charge of $375 for delivery of electronic deposition transcripts in addition to hard copies. Consol asserts that it is common for attorneys to receive electronic copies of transcripts, since presentation of deposition testimony at trial is much easier with electronic transcripts.

This court has previously held that a defendant was not entitled to costs related to the production of electronic transcripts because they were obtained for the convenience of counsel rather than out of necessity. Consol has not demonstrated that it was reasonably necessary to obtain both hard and electronic copies of the transcripts. Thus, the coulrt will exclude the $375 for transcripts delivered in Microsoft Word.

Discovery support

Gasco also objects to taxation of a third-party discovery vendor’s charge for imaging, exporting, numbering, naming, saving, and delivering documents for production in discovery.

Country Vintner of N. C. LLC v. E. & J. Gallo Winery Inc., 718 F.3d 249 (4th Cir. 2013) held that 28 U.S.C. § 1920(4)’s reference to “making copies” covers only “converting electronic files to non-editable formats, and burning the files onto discs.”

Here, the first line item on the vendor’s invoice — “Image documents for from [sic] production for D. Gibson; export with production numbers and convert to PDF format; name documents and burn to CD for printing; coordinate FedEx delivery to D. Gibson” — can be said to fall within that definition of “making copies.”


Gasco objects to a charge for binders and dividers used for trial exhibit notebooks. Because other courts have taxed the cost of exhibit notebooks, this court will overrule Gasco’s objection to these charges.

Unnecessary witness subpoena

Finally, Gasco objects to a fee for service of a subpoena on C. Bolling, Gasco’s attorney until shortly before the first trial. Gasco asserts that Bolling’s presence at trial was unnecessary because his testimony would have been barred by the attorney-client privilege and Consol never attempted to call Bolling as a witness. Gasco also notes that $85 of the service fee was for same-day rush service and rural service. Consol replies only that it subpoenaed Bolling out of an abundance of caution.

The court agrees with Gasco that Bolling’s presence at the trial was unnecessary and will sustain the objection as to the $180 service charge.

Consol shall be allowed costs in the amount of $25,476.

Bill of costs granted in part and denied in part.

Knox Energy LLC v. Gasco Drilling Inc., Case No. 1:12cv46, July 30, 2018. WDVA at Abingdon (Jones). VLW No. 018-3-313, 7 pp.

VLW 018-3-313