USCA1 Opinion

         [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

                                  

                   UNITED STATES COURT OF APPEALS

                         FOR THE FIRST CIRCUIT



                         ____________________





No. 97-2330





               PATRICIA H. PIESTER AND RICHARD PIESTER,



                        Plaintiffs, Appellants,



                                  v.



             INTERNATIONAL BUSINESS MACHINES CORPORATION,



                         Defendant, Appellee.



                         ____________________





             APPEAL FROM THE UNITED STATES DISTRICT COURT



                   FOR THE DISTRICT OF RHODE ISLAND



             [Hon. Ernest C. Torres, U.S. District Judge]



                         ____________________



                                Before



                        Torruella, Chief Judge,

                     Coffin, Senior Circuit Judge,

                       and Stahl, Circuit Judge.



                         ____________________



    Robert Corrente, Hinckley, Allen & Snyder, Steven J. Phillips and

Levy, Phillips & Konigsberg on brief for appellants.

    Michael A. Cerussi, Jr. and Cerussi & Spring on brief for appellee.





                         ____________________



                            May 14, 1998

                         ____________________





   Per Curiam.  Patricia and Richard Piester appeal from

  the district court's award of costs to International Business

  Machines, Inc. ("IBM"), the prevailing party in a personal

  injury suit alleging that Patricia Piester had developed

  "repetitive stress injury" ("RSI") from her workplace use of an

  IBM computer keyboard.  Following a hearing on IBM's

  application for costs in the amount of $95,458.47, the district

  court granted the request but reduced the amount of costs to

  $37,431.06.  On appeal, the Piesters ask this court to further

  reduce the cost award to $6,520.

    I. Standard of Review

    Absent a specific statutory provision or rule to the

  contrary, "costs other than attorneys' fees shall be allowed as

  of course to the prevailing party unless the court otherwise

  directs." Fed. R. Civ. P. 54(d)(1).  The district court's

  discretion to deny recovery of costs that fall within the Rule

  54(d) categories "operates in the long shadow of a background

  presumption favoring cost recovery for prevailing parties."  In

  re San Juan Dupont Plaza Hotel Fire Litigation, 994 F.2d 956,

  962 (1st Cir. 1993).  "The award of costs is a matter given to

  the discretion of the district court, which this court will

  review only to ensure that no abuse of discretion occurred." 

  Rodriguez-Garcia v. Davila, 904 F.2d 90, 100 (1st Cir. 1990).

  See 10 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,

  Federal Practice and Procedure (hereinafter "10 Wright &

  Miller")  2668 (1983).

    II. Discussion

    Based upon our careful review of the complete record

  and consideration of the parties' briefs, we conclude that

  there was no abuse of discretion in the district court's award

  of costs.  We address each of the specific categories of costs

  disputed by the Piesters.

    A. Transcript

    The district court did not abuse its discretion in

  awarding the cost of preparing the transcript from the first

  trial.  "Whether the transcript was 'necessarily obtained'

  [under  1920(2)] is a finding of fact by the district court

  that will not be disturbed absent clear error." 10 James Wm.

  Moore, et al., Moore's Federal Practice (hereinafter "10

  Moore's")  54.103[3][e] (3d ed. 1998)).  The district court's

  finding that the preparation of the transcript of the first

  trial was necessary for use in the second trial was supported

  by the record and not clearly erroneous.  The Piesters'

  argument that because the court granted its motion for a new

  trial, IBM was not the prevailing party at the first trial and,

  therefore, not entitled to costs thereof is also unavailing.

  See 10 Wright & Miller,  2667, pp. 188-89 ("the prevailing

  party at a second trial is usually awarded the costs of both

  trials"); see also Farmer v. Arabian American Oil Co., 379 U.S.

  227 (1964); Meder v. Everest & Jennings, Inc., 553 F. Supp.

  149, 150 (E.D.Mo. 1982).

    2. Depositions

    "It is within the discretion of the district court to

  tax deposition costs if special circumstances warrant it, even

  though the depositions were not put in evidence or used at the

  trial." Templeman v. Chris Craft Corp., 770 F.2d 245, 249 (1st

  Cir. 1985); see also Riofrio Anda v. Ralston Purina Co., 772 F.

  Supp. 46, 55 (D.P.R. 1991) (noting that  1920(2) "does not mean

  that depositions must be used at trial in order to be taxed as

  costs"); 10 Moore's  54.103[3][c], p. 54-181 ("that a

  particular deposition was not actually used does not bar an

  award of costs").  The district court's finding that the

  deposition of witnesses listed by the Piesters was a necessary

  part of IBM's trial preparation was not a clear abuse of its

  discretion.  The court adequately addressed the Piesters'

  concern that they not be taxed for the costs of depositions

  taken in other cases by limiting the award of costs to

  "depositions taken in this case, not in other cases."  The

  Piesters have failed to show that the award was not so limited. 

  Nor do the Piesters dispute the court's finding that IBM had a

  right to subpoena Patricia Piester's medical records from the

  medical providers directly.  Accordingly, there was no abuse of

  discretion in the district court's award of deposition costs.

    C. Copying

    Under  1920, the district court may tax as costs

  "[f]ees for exemplification and copies of papers necessarily

  obtained for use in the case."  1920(4).  "The copies made . .

  . may be deemed necessary even if not actually used at trial." 

  10 Moore's  54.103[3][d], p. 54-192.  The court's

  determination on the necessity issue should be reversed only if

  clearly erroneous.  Id.  The district court made a specific

  finding that the internal copying was "necessary" within the

  meaning of  1920.  That finding is supported by the record

  which includes a detailed explanation of the copying costs. 

  There was no clear error.

    D. Expert Witness Fees

    The Piesters argument that costs for IBM's expert

  witnesses should only have been awarded for the days that a

  witness actually testified is unavailing.  The district court

  did not err in awarding fees to Dr. Hirsch even though he did

  not actually testify.  "Although courts do not ordinarily allow

  fees for witnesses who have not testified at trial, a court may

  award such a fee if the witness was ready to testify but

  extrinsic circumstances rendered his testimony unnecessary." 

  Nissho-Iwai Co., Ltd. v. Occidental Crude Sales, 729 F.2d 1530,

  1553 (5th Cir. 1984); see also Spanish Action Comm. of Chicagov. City of Chicago, 811 F.2d 1129, 1138 (7th Cir. 1987)

  (district court abused its discretion by denying costs for

  witnesses who were available to testify but were not called to

  testify).  The record fully supports a finding that IBM

  reasonably expected to call Dr. Hirsch as an expert.  Under

  those circumstances, the district court did not abuse its

  discretion in awarding costs.

    Nor did the district court abuse its discretion in

  awarding costs for the days that Dr. Nathan was present and

  available to testify.  The court specifically found that there

  had been a time lag during the trial which justified keeping

  Dr. Nathan in Providence for the intervening time.  Section

  1821 authorizes witnesses to be compensated for the days that

  they are available to testify as well as for the days that they

  actually testify.  See Hurtado v. United States, 410 U.S. 578,

  584-85 (1973) ("witnesses are compensated under [1821] for the

  days on which they have made themselves available to testify

  but on which their physical presence in the courtroom is not

  required").

    The district court's Order Awarding Costs and Including

  Costs in the Judgment, dated September 15, 1997, is affirmed. 

  See Loc. R. 27.1.