Unreported / Non-Citable
Background
Bayer Healthcare LLC prevailed in a private antitrust suit brought by Tevra Brands LLC. As the prevailing party, Bayer filed a Bill of Costs on August 15, 2024 seeking $1,266,238.44 in six categories: $23,568 in trial and hearing transcripts, $55,355 in deposition transcripts and recordings, $1,094,530 in e-discovery costs, $44,654 in trial exhibits, $31,645 in visual aids, and $16,485 in witness expenses. Tevra objected, conceding only $45,666 in entitlement.
The Clerk of the Court taxed costs at $45,666.05 in September 2025, including $0 for trial and hearing transcripts, $18,425 for deposition transcripts, $145 for e-discovery, $10,198 for trial exhibits, $414 for visual aids, and $16,485 for witness expenses. Bayer moved for District Court review of the first five categories of taxed costs, seeking restoration of $1,165,218.
The Court’s Holding
Judge Beth Labson Freeman granted Bayer’s motion in part and denied it in part, partially restoring substantial costs the Clerk had disallowed.
Under Federal Rule of Civil Procedure 54(d) and Dawson v. City of Seattle, prevailing parties enjoy a presumption that their taxable costs will be awarded. Courts review the Clerk’s taxation de novo, applying that presumption.
On trial and hearing transcripts, the court partially restored costs, finding that some transcripts were necessarily obtained for use in the case beyond mere convenience. On deposition transcripts and recordings, the court restored additional amounts where the depositions were used or reasonably anticipated to be used at trial.
The largest dispute — e-discovery costs — generated the most substantive analysis. The court parsed the categories of e-discovery cost (production, processing, hosting, technical assistance) and partially restored amounts that fall within the narrow definition of taxable e-discovery costs under In re Online DVD-Rental Antitrust Litigation and similar precedents. Document review costs, hosting fees beyond the production stage, and consultant time were generally not taxable, but data processing necessary to produce documents in the format ordered by the court was.
On trial exhibits and visual aids, the court partially restored amounts tied to materials actually used or shown at trial, while disallowing amounts spent on materials not introduced. The witness expenses category was undisturbed, having been fully taxed by the Clerk.
Key Takeaways
- The Rule 54(d) presumption favoring taxation of costs to the prevailing party applies even in massive private antitrust litigation, but the specific categories must fit within 28 U.S.C. § 1920’s defined taxable categories.
- E-discovery costs are partially taxable, but only for the narrow processing and production steps. Document review, hosting beyond production, and consultant time are generally not recoverable as costs.
- Trial and deposition transcripts are taxable when used or reasonably anticipated to be used in the case, but the prevailing party must support that necessity.
- Trial exhibits and visual aids are taxable for materials actually used or displayed at trial, not for the broader universe of materials prepared in case they were needed.
- The Clerk’s initial taxation is just the starting point. Sophisticated prevailing parties in major commercial cases will typically file motions for District Court review and can recover substantial additional sums.
Why It Matters
Cost taxation in major commercial litigation has become increasingly significant as e-discovery expenses have ballooned. A million-dollar swing in taxable costs is the kind of issue that drives significant motion practice in any sizable antitrust or IP case.
For prevailing parties, the practical lesson is to invest in detailed documentation of every cost category — particularly e-discovery — to support the necessary-for-use justification at the Clerk’s taxation stage and on District Court review. For losing parties, the case is a reminder that cost exposure can run into seven figures even when liability has been avoided. Both sides should manage e-discovery vendors and trial-preparation spending with one eye on the eventual cost-taxation analysis.