City of Alameda, California et al v. Nuveen Municipal High Income Opportunity Fund et al

Filing 290

ORDER signed on 5/11/12 by Judge Susan Illston denying ( 288 ) Motion Revised Cost Bill Revised Cost Bill in case 3:08-cv-04575-SI; denying ( 236 ) Motion Revised Cost Bill Revised Cost Bill in case 3:09-cv-01437-SI (tfS, COURT STAFF) (Filed on 5/15/2012) Modified on 5/15/2012 (tfS, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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CITY OF ALAMEDA, CALIFORNIA,

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Plaintiff,

United States District Court
For the Northern District of California

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No. C 08-4575 SI and No. C 09-1437 SI
FURTHER ORDER RE: ALAMEDA’S
BILL OF COSTS

v.
NUVEEN MUNICIPAL
OPPORTUNITY FUND,

HIGH

INCOME

Defendant.

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On January 23, 2012, the Court awarded Alameda $91,526.20 of its claimed costs, and held
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plaintiffs in these related cases jointly and severally liable for the costs. With regard to certain claimed
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costs, the Court held that Alameda was not entitled to recover for OCR and metadata extraction, but that
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Alameda could recover for electronic scanning. The January 23, 2012 order stated that “the Court will
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permit Alameda to file a revised and supplemental cost bill seeking costs for electronic scanning of
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documents required for the document production in these cases, as well as the costs for photocopying
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documents for the document production.

If Alameda seeks costs for electronic scanning, the

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supplemental cost bill shall be accompanied by a declaration explaining why electronic scanning of
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documents was required in these cases.” Order at 7:26-8:2.
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In response to the Court’s order, Alameda filed a further submission seeking $15,867.99 for
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scanning documents for production and producing those documents, and $1,144.78 for copying
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documents for use as exhibits at trial. Nuveen has filed an objection to Alameda’s revised cost bill.
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28 U.S.C. § 1920 authorizes a judge or clerk of the district court to tax costs. Pursuant to Federal
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Rule of Civil Procedure 54(d), costs incurred by the prevailing party may be assessed against the losing
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party as of course and may be taxed by the clerk. “Unless a federal statute, these rules, or a court order

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provides otherwise, costs – other than attorney’s fees – should be allowed to the prevailing party.” Fed.

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R. Civ. P. 54(d)(1). The taxation of costs lies within the trial court’s discretion. In re Media Vision

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Tech. Secs. Litig., 913 F. Supp. 1362, 1366 (N.D. Cal. 1996). According to Civil Local Rule 54-1(a),

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a bill of costs “must state separately and specifically each item of taxable costs claimed.” Civ. L.R.

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54-1(a). Further, a party seeking costs must provide an affidavit stating that the costs were “necessarily

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incurred, and are allowable by law” and “[a]ppropriate documentation to support each item claimed.”

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Id. With regard to individual itemized costs, “the burden is on the party seeking costs . . . to establish

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the amount of compensable costs and expenses to which it is entitled.” Allison v. Bank One-Denver, 289

United States District Court
For the Northern District of California

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F.3d 1223, 1248-49 (10th Cir. 2002).

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The Court finds that Alameda has not met its burden to show that the costs claimed in the further

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submission are recoverable. Alameda states that “[e]lectronic scanning was necessary because Nuveen

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and Osher demanded, and Alameda produced, approximately two million pages of documents in this

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case.” Elder Decl. ¶ 3. However, as Nuveen notes, that this is the same explanation Alameda provided

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in its original submission. Nuveen states that Alameda electronically produced over 1.7 million pages

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to Nuveen directly from the same production in Vectren, and Nuveen paid for other document

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production. Nuveen has identified numerous specific invoices that (1) predate the beginning of

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discovery in these cases, and thus were presumably incurred in the Vectren case; (2) appear to relate

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to Vectren, based on references on the invoices such as “accounting documents,” as accounting was an

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issue in Vectren and not in these cases; and (3) show costs incurred for “binding” and assembly into

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three-ring binders, and Nuveen states that Alameda did not produce binders to Nuveen.

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With regard to the claimed $1,144.78 for copying documents for use as exhibits at trial, Alameda

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states that this cost is recoverable because it was incurred to prepare visual aids for trial. However, the

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Court granted summary judgment in favor of Alameda on all claims in an order filed May 16, 2011, and

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it appears from the date on the invoice that the binders were produced on May 17, 2011. Nuveen also

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notes that although the handwritten notation on the invoice states “PTF & Def Combined Prelim. Trial

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Exh.,” Nuveen states that it never exchanged trial exhibits with Alameda, and thus the binders could not

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have included plaintiffs’ exhibits.
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CONCLUSION
Accordingly, for the reasons set forth in this order, the Court DENIES Alameda’s revised cost
bill. Docket No. 288 in C 08-4575 SI and 236 in C 09-1437 SI.

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IT IS SO ORDERED.

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Dated: May _11__, 2012
SUSAN ILLSTON
United States District Judge

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United States District Court
For the Northern District of California

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