Fitbug Limited v. Fitbit, Inc

Filing 119

Order by Hon. Samuel Conti granting in part and denying in part 108 motion for review of the Clerk's taxation of costs 106 , and taxing $63,660.94 in costs. (sclc2, COURT STAFF) (Filed on 5/13/2015)

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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 United States District Court For the Northern District of California 9 FITBUG LIMITED, Plaintiff, 10 v. 11 12 FITBIT, INC., Defendant. 13 14 ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 13-1418 SC ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR REVIEW OF CLERK'S TAXATION OF COSTS 15 16 I. 17 INTRODUCTION Now before the Court is Plaintiff Fitbug Limited's ("Fitbug") 18 motion for review of costs allowed by the Clerk of the Court 19 ("Clerk"). 20 Costs"), 106 ("Cost Taxed"). 21 112 ("Opp'n"), 114 ("Reply"), and appropriate for resolution 22 without oral argument under Civil Local Rule 7-1(b). 23 reasons set forth below, the motion is GRANTED in part and DENIED 24 in part, and the Court taxes $63,660.94 in costs. ECF No. 108 ("Mot."); see also ECF Nos. 100 ("Bill of The motion is fully briefed, ECF Nos. For the 25 26 27 28 II. BACKGROUND This is a trademark infringement case between two companies that manufacture and sell portable electronic fitness tracking 1 devices. The Court granted summary judgment in favor of Defendant 2 Fitbit, Inc. ("Fitbit") on all the trademark claims, finding they 3 were barred by laches, ECF No. 96 ("SJ Order"), and thus entered 4 judgment in Fitbit's favor. 5 that judgment, Fitbit submitted a bill of costs as required by 28 6 U.S.C. Section 1920, which authorizes the Court or its Clerk to tax 7 as "costs" various "minor, incidental [litigation] 8 expenses . . . ." 9 1997, 2006 (2012). ECF No. 97 ("Judgment"). Pursuant to Taniguchi v. Kan Pac. Saipan, Ltd., 132 S. Ct. United States District Court For the Northern District of California 10 In its bill of costs, Fitbit sought $88,888.86 in costs. 11 Fitbug objected, ECF No. 103, and the Clerk ultimately taxed costs 12 of $54,089.15. 13 the ambit of Civil Local Rule 54-3(c)," and $17,802.59 as "outside 14 the ambit of Civil Local Rule 54-3(d)," which furnish the standards 15 for allowable deposition costs and reproduction and exemplification 16 costs, respectively. 17 The Clerk declined to tax $16,997.12 as "outside See Civ. L.R. 54-3(c)-(d). Despite the Clerk's substantial reductions to Fitbit's costs, 18 Fitbug believes the amount taxed includes non-taxable items. As a 19 result, Fitbug asks the Court to either reject Fitbit's claimed 20 costs entirely or, at a minimum, reduce them by a further 21 $27,468.58. Fitbit opposes any further reductions in its costs. 22 23 24 III. LEGAL STANDARD Awarding costs is discretionary; however there is a 25 presumption in favor of awarding costs to prevailing parties. 26 Ass'n of Mexican-Am. Educators v. State of Cal., 231 F.3d 572, 591 27 (9th Cir. 2000) (en banc); see also Jefferson v. City of Fremont, 28 No. C-12-0926 EMC, 2015 WL 1264703, at *2 (N.D. Cal. Mar. 19, 2 See 1 2015). Nonetheless, "[w]ith regard to individual itemized costs, 2 the burden is on the party seeking costs . . . to establish the 3 amount of compensable costs and expenses to which it is entitled." 4 City of Alameda v. Nuveen Mun. High Income Opportunity Fund, No. C- 5 08-4575 SI, 2012 WL 177566, at *1 (N.D. Cal. Jan. 23, 2012) 6 (internal quotation marks and citation omitted). Federal Rule of Civil Procedure 54 provides for a party to 7 8 move for judicial review of costs taxed by the clerk. 9 P. 54(d)(1). The Court reviews the Clerk's taxation of costs de United States District Court 10 For the Northern District of California Fed. R. Civ. novo. 11 2d 981, 1001 (N.D. Cal. 2005). 12 See Lopez v. San Francisco Unified Sch. Dist., 385 F. Supp. Taxable costs are listed in 28 U.S.C. Section 1920 ("Section 13 1920"), and include: (1) filing fees and other court fees, (2) fees 14 for transcripts "necessarily obtained for use in the case;" (3) 15 costs of exemplification and copies also "necessarily obtained," 16 (4) certain fees for printing and witnesses, (5) docket fees under 17 28 U.S.C. Section 1923, and (6) costs of court-appointed experts or 18 compensation for interpreters. 19 The Civil Local Rules provide additional guidance regarding 20 bills of costs. See Civ. L.R. 54-1(a); Civ. L.R. 54-3. 21 Specifically, the Local Rules require a party's bill of costs 22 "state separately and specifically each item of taxable costs 23 claimed." 24 affidavit stating that the items listed are "correct and [have] 25 been necessarily incurred in the case and that the services for 26 which fees have been charged were actually and necessarily 27 performed." 28 (requiring a supporting affidavit stating that "the costs are Civ. L.R. 54-1(a). Further, a party must provide an 28 U.S.C. § 1924; see also Civ. L.R. 54-1(a) 3 1 correctly stated, were necessarily incurred, and are allowable by 2 law"). 3 4 5 IV. DISCUSSION First, Fitbug argues that because Fitbit's declaration 6 supporting its bill of costs, ECF No. 100-1 ("First Wakefield 7 Decl."), does not state (as required by Civil Local Rule 54-1(a)) 8 that its claimed costs are "allowable by law," all of Fitbit's 9 costs should be denied. However, Fitbit's declaration states it is United States District Court For the Northern District of California 10 filed "in support of Fitbit's Bill of Costs" and is "in accordance 11 with Federal Rule of Civil Procedure 54, Local Rules 54-1 and 54-3, 12 and 28 U.S.C. § 1924." 13 believes "[n]o other words can tell it half so clearly," the 14 requirement a party say the "three little words," "allowable by 15 law," is merely a reminder that the Court expects them to submit 16 costs they believe are taxable, not a set of magic words necessary 17 to receive any costs. 18 Live at the London House (Mercury Records 1958), available at: 19 20 Fitbit's declaration makes clear, Fitbit submitted these costs in 21 good faith and understood that doing so was a representation to the 22 Court and the Clerk that the costs were "allowed by law." 23 Court must decide whether Fitbit was right or not. 24 declines to elevate form over substance to avoid making that 25 decision. Id. at ¶ 2. While Fitbug apparently Cf. Sarah Vaughan, Three Little Words, on As the language of Now the The Court 26 The balance of Fitbug's motion takes issue with Fitbit's 27 claimed costs for shipping, electronic discovery and document 28 production, preparing demonstrative exhibits, and certain office 4 1 supplies. The Court also addresses the claimed costs for 2 deposition transcripts and, finally, photocopying and scanning. 3 A. Shipping Charges 4 Shipping or expedited delivery charges are not allowable as 5 costs. See SJA Amoroso Const. Co. v. Exec. Risk Indemn. Inc., No. 6 C 06-2572-SBA, 2009 WL 962008, at *4 (N.D. Cal. Apr. 8, 2009). 7 Fitbug rightly points out that Fitbit sought as costs $324.28 for 8 FedEx shipping and messenger services. 9 notes that shipping and handling for deposition transcripts are Further, Fitbug's objection United States District Court For the Northern District of California 10 also not allowable. See Obj. at 6-7; see also Blanton v. Cnty. of 11 Sacramento, No. 2:09-cv-01832-MCE-CKD, 2013 WL 3283216, at *2 (E.D. 12 Cal. June 27, 2013) ("[T]he court will not tax the cost of postage 13 and handling of the deposition transcripts, since those costs are 14 not enumerated in [28 U.S.C. Section 1920].") (internal quotation 15 marks and citation omitted). 16 review is GRANTED and these costs will not be taxed. As a result, Fitbug's motion for 17 B. 18 Next, Fitbug takes issue with several costs associated with 19 20 Electronic Discovery and Document Production electronic discovery and document production. Section 1920 was enacted in 1853 and as a result does not 21 speak directly on the taxability of electronic discovery costs. 22 See Alzheimer's Inst. of Am. Inc. v. Elan Corp. PLC, No. C-10- 23 00482-EDL, 2013 WL 8744216, at *2 (N.D. Cal. Jan. 31, 2013). 24 has the Ninth Circuit or Supreme Court spoken on how Section 1920 25 should be interpreted in this context, aside from remarking that 26 (in a distinct context, see id. at *1 (distinguishing this general 27 statement)) "[t]axable costs are limited to relatively minor, 28 incidental expenses." Taniguchi, 132 S. Ct. at 2006. 5 Nor 1 In this vacuum, courts have analogized the language of Section 2 1920(4), which authorizes the taxation of "[f]ees for 3 exemplification and the costs of making copies of any materials 4 where the copies are necessarily obtained for use in the 5 case . . . ," to a variety of electronic discovery expenses. 6 e.g., Ancora Techs., Inc. v. Apple, Inc., No. 11-CV-06357 YGR, 2013 7 WL 4532927, at *2-4 (N.D. Cal. Aug. 26, 2013) (allowing costs for 8 converting electronic documents into usable formats while denying 9 costs for hosting electronic data and technical support); See, United States District Court For the Northern District of California 10 Pacificorp v. Nw. Pipeline GP, No. 3:10-cv-00099-PK, 2012 WL 11 6131558, at *7-8 (D. Or. Dec. 10, 2012) (concluding that conversion 12 of electronic documents into a database is taxable); Tibbie v. 13 Edison Int'l, No. CV 07-5359 SVW (AGRx), 2011 WL 3759927, at *6 14 (C.D. Cal. Aug. 22, 2011) (taxing costs for technical experts 15 required to prepare and produce electronic discovery documents). 16 17 18 1. Charges for "FW Litigation Support -- Data Extraction and Processing The first electronic discovery expense Fitbug disputes is five 19 charges for "FW Litigation Support -- Data Extraction and 20 Processing" apparently totaling $23,464.98. 21 one of these charges, described in Fitbug's moving papers as $23.78 22 claimed for "FW Litigation Support -- Data Extraction and 23 Processing," id., does not actually appear in Fitbit's submissions. 24 On the contrary, the only $23.78 item Fitbit submitted is an 25 already-disallowed shipping charge, dated November 18, 2013. 26 First Wakefield Decl. Ex. B at 8. 27 wrongly dated in both Fitbug's objection and motion, the Court 28 surmises that Fitbug likely meant to challenge a different charge Mot. at 6. However, See Even though this charge is also 6 1 (also for "FW Litigation Support -- Data Extraction and 2 Processing") dated November 30, 2013 and totaling $8,840.85. 3 result, the correct total for these objected-to charges is 4 $32,282.05. 5 As a The First Wakefield Declaration avers that these costs relate 6 "to collection, scanning and conversion of documents, and related 7 processes necessary to the eDiscovery process," and these entries 8 specifically "concern document collection, including scanning and 9 related processes." In a subsequent declaration, Wakefield United States District Court For the Northern District of California 10 provides more information about these costs, stating that they were 11 necessary to prepare discovery documents for production to Fitbug 12 in the format to which the parties agreed. 13 ("Second Wakefield Decl.") at ¶¶ 9-10; see also ECF No. 23 14 (stating, in a joint case management statement, that the parties 15 agreed to a particular format for electronic documents). 16 See ECF No. 112-1 As Fitbit points out, several other courts have taxed similar 17 electronic document processing costs where, as here, the parties 18 agreed to a particular format for production and the costs incurred 19 were necessary for compliance with that agreement. 20 2013 WL 4532927, at *2; eBay v. Kelora Sys., LLC, No. C 10-4947 CW 21 (LB), 2013 WL 1402736, at *7-8 (N.D. Cal. Apr. 5, 2013). 22 Initially, Fitbug argued that these costs were impermissible 23 because they included non-taxable costs for data hosting, metadata 24 extraction, and printing documents to serve on opposing counsel. 25 See ECF No. 108-1 ("Rosenberg Decl.") ¶¶ 3-4. 26 submissions by Fitbit have clarified that such charges are not 27 included in Fitbit's claimed costs with the exception of metadata 28 extraction, which Fitbit states was necessary to comply with the 7 See Ancora, However, subsequent 1 parties' agreement regarding the production of electronic 2 documents. 3 See Second Wakefield Decl. ¶ 9, 11, 18. Fitbug believes the Court should disregard these subsequent 4 documents because they provide details not included with Fitbit's 5 submissions to the Clerk. 6 to "require and consider further affidavits and documentation as 7 necessary to determine allowable costs." 8 the Clerk may consider such supplemental submissions, the Court 9 cannot imagine why it cannot do so as well. However, the Local Rules allow the Clerk Civ. L.R. 54-4(a). If See Gutierrez v. Wells United States District Court For the Northern District of California 10 Fargo Bank, N.A., No. C 07-05923 WHA, 2011 WL 115481, at *2 (N.D. 11 Cal. Jan. 13, 2011) ("First, [Fitbug] seeks to limit [Fitbit] to 12 the attachment filed with the bill of costs, but the local rules 13 explicitly provide for submission of supplemental documentation 14 rebutting objections, and the federal rules provide for challenges 15 to the taxing of costs.") (citations and emphasis omitted); see 16 also Emblaze Ltd. v. Apple Inc., No. 5:11-cv-01079-PSG, 2015 WL 17 1304779, at *6 (N.D. Cal. Mar. 20, 2015) (considering arguably 18 untimely supplementation of the record because it was a "good-faith 19 attempt to provide the court with all information necessary to make 20 a reasoned determination about whether to tax costs"). 21 Thus, the Court finds these expenses are properly taxed as 22 exemplification costs necessarily incurred in complying with the 23 parties' agreement. 24 extraction are included, these too are necessarily incurred, 25 allowable exemplification costs because they were incurred not for 26 the convenience of counsel, but to comply with the parties' 27 agreement. 28 No. C-05-01766 RMW, 2009 WL 5114002, at *4 (N.D. Cal. Dec. 18, Moreover, to the extent the costs of metadata Compare Computer Cache Coherency Corp. v. Intel Corp., 8 1 2009) (denying costs for metadata extraction costs merely for the 2 convenience of counsel), with eBay, 2013 WL 1402736, at *12 3 (allowing such costs where the parties agreement provided for 4 metadata extraction, Bates numbering, and native file links). 5 result, Fitbug's motion for review of the Clerk's taxation of these 6 costs is DENIED, and these $32,282.05 in costs will be taxed. 2. 7 Charges for "FW Litigation Support -- Production Deliveries" 8 9 As a Next, Fitbug challenges seven items for "FW Litigation Support United States District Court For the Northern District of California 10 -- Production Deliveries" totaling $4,466.91. 11 argued these charges are taxable because they "relate to production 12 of documents." 13 has elaborated that these charges include costs for converting 14 document formats as required by the parties' agreement, as well as 15 providing Bates numbers and confidentiality designation, preparing 16 load files, and loading the information onto physical media for 17 delivery to Fitbug. 18 contrary to Fitbug's chief objection, Fitbit now avers that the 19 costs of shipping or physical deliveries of these materials are not 20 included in these charges. 21 First Wakefield Decl. at ¶ 5. Initially, Fitbit Subsequently, Fitbit Second Wakefield Decl. at ¶ 14. Furthermore, Id. at ¶ 15. These costs are properly taxed as well because they are 22 expressly contemplated by the parties' agreement and are 23 necessarily incurred exemplification costs. 24 1402736, at *7, 12. 25 are necessarily incurred because without the conversion and 26 organization of these files, "any copy is relatively useless." 27 at *7. 28 provide a fuller explanation of these charges in its initial See eBay, 2013 WL As Magistrate Judge Beeler found, such costs Id. While Fitbug reiterates its complaints that Fitbit did not 9 1 submissions and again made statements in the parties' meet and 2 confer that are contradicted by its subsequent submissions, the 3 Court rejected these arguments as to the other discovery costs and 4 does so here as well. 5 115481, at *2. 6 Clerk's taxation of these costs is DENIED and this $4,466.91 will 7 be taxed. See Civ. L.R. 54-4(a); Gutierrez, 2011 WL As a result, Fitbug's motion for review of the 8 C. 9 Next, Fitbug challenges numerous costs related to Fitbit's United States District Court For the Northern District of California 10 11 Demonstrative Exhibit-Related Charges preparation of demonstrative exhibits. Civil Local Rule 54-3(d)(5) provides that the "costs of 12 preparing charts, diagrams, videotapes, and other visual aids to be 13 used as exhibits is allowable if such exhibits are reasonably 14 necessary . . . ." 15 are limited to "the cost of physical preparation of 16 demonstratives," not "costs associated with the intellectual effort 17 involved in creating the content of demonstratives." 18 WL 4532927, at *5 (quoting Computer Cache, 2009 WL 5114002, at *1- 19 2) (additional citations omitted). 20 The "costs of preparing" demonstrative exhibits Ancora, 2013 Here, only some of the costs claimed by Fitbit are taxable. 21 For instance, generic entries like "Meeting with counsel" or 22 "Travel to[]/from SF" are either not taxable or likely include both 23 taxable and non-taxable components. 24 meeting, review, and development of Defense slide deck" likely 25 include some taxable expenses, however the Court finds Fitbit has 26 not sufficiently shown that these costs stem from the physical 27 preparation of the demonstrative exhibits and not the "creation and 28 preparation of the content of demonstrative exhibits," which is not 10 Others, like "[a]ll-day 1 taxable. See Pixion Inc. v. Placeware, Inc., No. C 03-02909 SI, 2 2005 WL 3955889, at *4 (N.D. Cal. May 26, 2005). 3 hand, the charges labelled "Defense Template," "Cut depo clips," 4 and "Database administration" all refer to the physical acts of 5 preparing a slide template for use with Fitbit's demonstratives, or 6 the physical act of editing videos of depositions and are thus 7 taxable. 8 Similarly, the physical acts of incorporating comments from counsel 9 and making stylistic changes, referred to Fitbit's invoices as On the other Id.; see also Second Wakefield Decl. at ¶¶ 22, 24. United States District Court For the Northern District of California 10 "Continue Slide Deck Revisions . . ." and "Review of PowerPoint 11 Draft . . ." are taxable because they reflect the physical 12 preparation of the contents separately decided upon by counsel. 13 Second Wakefield Decl. ¶ 24. 14 taxable or not sufficiently described for the Court to determine if 15 they are taxable, and thus will be excluded from the costs taxed. 16 See In re Ricoh Co., Ltd. Patent Litig., 661 F.3d 1361, 1368 (Fed. 17 Cir. 2011) (applying Ninth Circuit law in disallowing 18 insufficiently described costs for document production). 19 result, the motion for review is GRANTED in part and DENIED in part 20 as to these charges, and $5,859.00 will be taxed. The remaining costs are either not As a 21 D. 22 Next, Fitbug challenges Fitbit's claimed costs for the 23 creation of folders, compact discs, index tabs, and other office 24 supplies. 25 Supplies Fitbug is right to object to the majority of these charges, 26 which are simply non-taxable office supplies. 27 Tuolumne Fire Dist., No. 1:11-cv-01271-SAB, 2014 WL 1757217, at *21 28 (E.D. Cal. Apr. 30, 2014) ("[T]he costs of office supplies are not 11 See Oyarzo v. 1 taxable under [S]ection 1920.") (citing Duhn Oil Tool, Inc. v. 2 Cameron Int'l Corp., No. 1:05-cv-01411-MLHGSA, 2012 WL 4210104, at 3 *5 (E.D. Cal. Sept. 12, 2012)). 4 GRANTED as to items such as "Manila Folder," "Copying:Custom Tabs 5 on Folders," or "Index Tabs." 6 similar costs, for instance slipsheets and binders, will not be 7 taxed. 8 $0.48 for slipsheets and $19.00 for three-ring binders). 9 Fitbug also objects to charges for two other items, As a result, Fitbug's motion is Mot. at 7-8. These and other See, e.g., First Wakefield Decl. Ex. A at 14 (including United States District Court For the Northern District of California 10 "EDD:Folder Creation" and "EDD:CD Initial Master," arguing that 11 these are non-taxable organizational or indexing tasks. 12 Elec. Materials v. Mitsubishi Materials, No. C-01-4925 SBA (JCS), 13 2004 WL 5361246, at *3, 12 (N.D. Cal. Oct. 22, 2004) (concluding 14 that "Local Rule [54-3(d)] does not authorize costs for . . . 15 special services such as indexing . . ."), report and 16 recommendation adopted, 2004 WL 5363614 (N.D. Cal. Nov. 22, 2004). 17 Fitbit does not defend charges for these items on a June 5, 2014 18 invoice, which it later discovered was erroneously included in the 19 bill of costs.1 20 however, argue that two of these charges are appropriately taxed 21 because they were "incurred . . . in scanning and otherwise 22 organizing the documents collected" from a third-party former Second Wakefield Decl. at ¶ 29. See MEMC Fitbit does, 23 1 24 25 26 27 28 The Second Wakefield Declaration states that "one invoice for $53.75 billed on June 4, 2014 was assigned to the wrong case number and billed in error, and should not have been included in the bill of costs," id. at ¶ 29, however the invoice itself includes two other potentially taxable charges, one for scanning and the other for copying. See First Wakefield Decl. Ex. B at 34. Because the Court cannot determine from the record whether these remaining charges were properly included in the bill of costs or were also erroneously charged, these charges will not be taxed. See id. 12 1 Fitbit employee, Mark Bult, for production in response to Fitbug's 2 subpoena of Mr. Bult. 3 are permissible under both Civil Local Rule 54-3(d)(2), which 4 states that the cost of reproducing "formal discovery documents 5 . . . is allowable," and cases allowing for the taxation of the 6 costs of producing discovery documents where those costs were 7 necessarily incurred and do not include "intellectual efforts" 8 involved in the production. 9 (citations omitted). Second Wakefield Decl. ¶ 27. These costs See eBay, 2013 WL 1402736, at *5 As a result, Fitbug's motion for review is United States District Court For the Northern District of California 10 GRANTED in part and DENIED in part, and only the $28.25 incurred in 11 responding to the Bult subpoena will be taxed. 12 CD creation charges have not been sufficiently explained by Fitbit, 13 and as a result will not be taxed. 14 1368. The other folder or See In re Ricoh, 661 F.3d at 15 E. Depositions 16 Finally, while Fitbug did not seek review of the Clerk's 17 taxation of deposition costs, it did argue in its objection that 18 certain deposition costs should not be taxed. 19 reviews the Clerk's taxation of costs de novo, the Court addresses 20 these costs as well. 21 Given that the Court Section 1920 provides for the taxation of "[f]ees for printed 22 or electronically recorded transcripts necessarily obtained for use 23 in the case . . . ." 24 provides for the taxation of the costs of an original and one copy 25 of deposition transcripts "including videotaped depositions," as 26 well as "[n]otary fees incurred in connection with taking 27 depositions . . . ." 28 Id. at (2). Civil Local Rule 54-3(c) See Civ. L.R. 54-3(c)(1), (3). First, Fitbug notes that Fitbit seeks costs for "Transcript 13 1 Packages" from a vendor, Esquire Solutions, for the depositions of 2 Mark Bult, James Park,2 and Amy McDonough. 3 packages contain more than the single original and copy permitted 4 by the Local Rules because, according to Esquire Solutions' 5 website, the transcript packages contain a bound paper transcript, 6 and a CD containing four versions of the full or condensed 7 transcripts. 8 Although "the trend among courts in this District appears to allow 9 a party to recover costs for the original deposition transcript and Fitbug argues these See ECF No. 103-1 ("Second Rosenberg Decl.") Ex. 1. United States District Court For the Northern District of California 10 a copy -- no matter what format the copy is in," Fitbug is right 11 that these transcript packages contain more than an original and a 12 single copy, as permitted by the Local Rules, and accordingly 13 cannot be fully taxed. 14 Supp. 3d --, 2014 WL 7184246, at *4 (N.D. Cal. 2014). 15 finds that taxing only 40 percent of the transcript packages is the 16 best potential solution because Esquire does not itemize the costs 17 of each additional format. 18 for the deposition of Amy McDonough and $235.65 for the deposition 19 of Mark Bult. 20 $1,471.80 for the deposition of James Park. See Hesterberg v. United States, -- F. The Court Accordingly, the Court taxes $348.15 As explained in footnote two, above, the Court taxes For the remaining depositions, the Court finds the only 21 22 allowable costs are one transcript copy, one additional copy (in 23 most cases a video copy), exhibit costs, and a reporter 24 2 25 26 27 28 Fitbit submitted two invoices from Esquire for the deposition of Mr. Park. One merely refers to a single copy of the transcript, while the other contains the same objectionable transcript package. See First Wakefield Decl. Ex. A at 16-18. The Court taxes the full cost of the single copy, 20 percent of the transcript package as the second copy, and a single set of exhibits, for a total of $1,471.80. 14 1 certification if not otherwise included in the cost of the 2 transcript. 3 at *5-6 (concluding there is "no reason to deny costs which conform 4 to [Civil Local Rule 54-3(c)(1)], even if the second copy is a 5 rough ASCII or a video"). 6 charges for shipping and handling of transcripts, "Interactive 7 Realtime," rough ASCII copies, and transcript CDs either fall 8 outside Section 1920 or exceed the number of copies permitted by 9 Civil Local Rule 54-3(c)(1). See Civ. L.R. 54-3(c)(1)-(4); Ancora, 2013 WL 4532927, Fitbug rightly objects that the other United States District Court For the Northern District of California 10 following deposition costs: 11 Deponent Mark Bult Accordingly, the Court taxes the 12 13 14 Dennis Skigen Items Transcript Package (taxed at 40%) Exhibits Transcript 15 Exhibits 16 Reporter Certification Amount $155.90 $79.75 $1,050.00 $276.20 $20.00 17 Video 18 19 Paul Landau 20 $570.00 Transcript Exhibits $1,527.20 $283.30 21 Reporter Certification 22 Video James Park 25 26 27 28 Fergus Kee $760.00 Transcript $926.25 Exhibits 23 24 $20.00 $357.10 Transcript Package (taxed at 20%) Transcript $188.45 15 $1,070.70 Exhibits 1 Reporter Certification 2 3 4 Woody Scal Video Transcript $233.80 $20.00 $855.00 $471.25 5 Exhibits 6 Video (1 of 4) Transcript $125.00 $591.50 Exhibits $193.10 Video Transcript Package (taxed at 40% Exhibits $500.00 $240.40 7 Eric Friedman $11.75 8 9 Amy McDonough United States District Court For the Northern District of California 10 $107.75 11 Sundeep Sangany Transcript $1,657.50 12 Exhibits $25.20 Reporter Certification $20.00 13 14 E. Deborah Jay Video Transcript $760.00 $413.80 Exhibits 15 $106.00 16 17 18 Bruce Issacson 19 Transcript Exhibits 20 Reporter Certification $1,306.40 $658.80 $20.00 21 David Haas Transcript $1,004.50 22 Exhibits 23 Video 24 25 $140.50 $1,742.50 26 Michael J. Jeffords Videos (2 of 4) 27 TOTAL DEPOSITION COSTS TAXED: 28 16 $250.00 $18,739.60 1 F. Remaining Exemplification Costs 2 In addition to the foregoing contested costs, Fitbit also 3 sought $2,210.24 for photocopying and $74.89 for scanning. Because 4 these costs are necessarily incurred exemplification costs, see 28 5 U.S.C. Section 1920(4), they will be taxed as well. 6 7 8 9 United States District Court For the Northern District of California 10 V. CONCLUSION For the reasons set forth above, Fitbug's motion for review of the Clerk's taxation of costs is GRANTED in part and DENIED in part and the Court taxes the following costs: 11 12 13 14 15 16 17 18 19 Category Deposition transcripts, video transcripts, reporter certifications, and exhibits Photocopying and scanning Electronic discovery and document production costs Preparation of demonstrative exhibits Production costs for Bult subpoena Amount $18,739.60 TOTAL COSTS TAXED: $63,660.94 $2,285.13 $36,748.96 $5,859.00 $28.25 20 21 IT IS SO ORDERED. 22 23 Dated: May 13, 2015 24 UNITED STATES DISTRICT JUDGE 25 26 27 28 17

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