Frlekin et al v. Apple Inc.

Filing 351

ORDER RE BILL OF COSTS re 341 Bill of Costs filed by Apple Inc.. Signed by Judge Alsup on 1/25/16. (whalc1, COURT STAFF) (Filed on 1/25/2016)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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AMANDA FRLEKIN, AARON
GREGOROFF, SETH DOWLING,
DEBRA SPEICHER, and TAYLOR
KALIN, on behalf of themselves and all
others similarly situated,

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Plaintiffs,

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For the Northern District of California

United States District Court

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No. C 13-03451 WHA (lead)
No. C 13-03775 WHA (consolidated)
No. C 13-04727 WHA (consolidated)

v.
APPLE INC.,

ORDER RE BILL OF COSTS
Defendant.
/
INTRODUCTION

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In this wage-and-hour action, an order granted defendant’s motion for summary

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judgment. Plaintiffs have appealed the order granting summary judgment. Meanwhile,

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defendant filed a bill of costs, and plaintiffs objected. For the reasons stated below, plaintiffs’

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objections are SUSTAINED IN PART and OVERRULED IN PART.

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STATEMENT

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Apple Inc. filed a bill of costs for $60,054.40. Apple’s bill of costs does not account for

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all costs incurred, only those relating to court transcripts, depositions, and filing fees. Plaintiffs

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objected, contending that this was not an “ordinary” case warranting an award of costs and

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objecting to specific costs. Apple filed a response to plaintiffs’ objections.

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ANALYSIS

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Rule 54(d)(1) provides that “[u]nless 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

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party.” Rule 54(d)(1) creates a presumption that the prevailing party will be awarded its taxable

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costs. Our court of appeals has held that Rule 54(d)(1) “vests in the district court discretion to

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refuse to award costs.” Assoc. of Mexican-American Educators v. California, 231 F.3d 572, 591

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(9th Cir. 2000) (en banc). “That discretion is not unlimited. A district court must specify

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reasons for its refusal to award costs.” Ibid. This entails, “in essence, a requirement that the

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court explain why a case is not ‘ordinary’ and why, in the circumstances, it would be
inappropriate or inequitable to award costs.” Id. at 593. This case is not an extraordinary civil

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For the Northern District of California

United States District Court

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case. It is a fight over money. Both sides have resources. Both sides knew the loser might be

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liable for costs.

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Apple contends it is entitled to its costs for several court transcripts, for deposition

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transcripts and videos, and for certain filing fees. This order addresses each category of Apple’s

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costs and adjusts the costs to which it is entitled.

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1.

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Pursuant to Civil Local Rule 54-3(b), Apple is entitled to the cost of the court transcripts

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COURT TRANSCRIPTS.

as follows:

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(1) The cost of transcripts obtained for an appeal is allowable.

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(2) The cost of a transcript of a statement by a Judge from the
bench which is to be reduced to a formal order prepared by counsel
is allowable.

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(3) The cost of other transcripts is not normally allowable unless,
before it is incurred, it is approved by a Judge or stipulated to be
recoverable by counsel.

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Apple seeks to recover costs for transcripts of two case management conferences, a

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summary judgment hearing, two discovery hearings, and a class certification hearing, totaling

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$1,499.85. Apple has offered no indication that any of the circumstances identified in Civil

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Local Rule 54-3(b) applies. Accordingly, Apple is entitled to NOTHING in costs relating to

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court transcripts, as follows:

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EXHIBIT

DESCRIPTION

AMOUNT

ADJUSTMENT

FINAL AMOUNT

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B

Case Management
Conference
10/17/2013

$121.00

Costs denied.

$0.00

C

Case Management
Conference
2/24/2014

$115.50

Costs denied.

$0.00

D

Summary
Judgment Hearing
5/22/2014

$398.75

Costs denied.

$0.00

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E

Discovery Hearing
11/12/2014

$53.35

Costs denied.

$0.00

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F

Discovery Hearing
11/20/2014

$86.25

Costs denied.

$0.00

G

Class Certification
Hearing

$725.00

Costs denied.

$0.00

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For the Northern District of California

United States District Court

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Total: $0.00

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2.

DEPOSITIONS.

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Pursuant to Civil Local Rule 54-3(c), a prevailing party is entitled to its costs for
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depositions as follows:
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(1) The cost of an original and one copy of any deposition
(including videotaped depositions) taken for any purpose in
connection with the case is allowable.

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(2) The expenses of counsel for attending depositions are not
allowable.
(3) The cost of reproducing exhibits to depositions is allowable if
the cost of the deposition is allowable.

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(4) Notary fees incurred in connection with taking depositions are
allowable.
(5) The attendance fee of a reporter when a witness fails to appear
is allowable if the claimant made use of available process to
compel the attendance of the witness.
Apple contends it is entitled to its costs for $57,569.55 in deposition costs, which

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comprises $44,436.78 for transcripts (including the cost of expedited production and certain

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surcharges for a videotaped deposition), $12,294.25 for video production, and $838.52 for non-

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appearance costs.

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Apple cites MEMC Electronic Materials v. Mitsubishi Materials, No. 01-4925, 2004

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WL 5361246, at *3 (N.D. Cal. Oct. 22, 2004) (Judge Joseph C. Spero), for the contention that

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“a sensible reading of [Civil Local Rule 54-3(c)(1)] covers the cost of videotaping and the cost

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incurred by the court reporter associated with obtaining a stenographic transcription of a

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deposition, as well as the cost of one copy of the videotape and of the written transcript.” That

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decision relied, in part, on the fact that the losing side had in fact requested the depositions to be

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videotaped and that the videos proved useful in resolving certain discovery disputes.

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Here, neither side ever used the videos of the depositions. Apple contends that the
videos “were absolutely necessary to preserve the evidence for a potential trial . . . to allow the
jury to evaluate the witnesses’ demeanor during their depositions, and to effectively present

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For the Northern District of California

United States District Court

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impeachment evidence” (Def.’s Response at 9). That argument is unpersuasive. All of these

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witnesses would presumably have testified live at trial, and the jury would have seen their

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demeanor as live witnesses. The transcribed testimony would have sufficed to impeach (if there

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had been occasion to impeach). The only thing a video would have added would be a visual of

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the demeanor of the witness at the time of the particular deposition extract. In the Court’s

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experience, such limited visuals rarely add any probative value of demeanor beyond what the

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trial itself already supplies. The principal occasion where a video plus a transcript is warranted

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is for witnesses beyond trial subpoena range or where the deponents are otherwise unlikely to

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testify live at trial.

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Civil Local Rule 54-3(c)(1) should be construed to further the nationwide goal to reduce

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the cost of litigation rather than to multiply it. A blanket omnibus approach to videotape every

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deposition (as Apple employed for each of the depositions it noticed) is wasteful and should not

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be rewarded.

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This order next holds that Apple may not recover for certain additional services such as

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expedited production and overnight delivery of exhibits, which costs were also incurred solely

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for the convenience of counsel. Finally, this order holds that Apple may not recover for non-

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appearance fees incurred when witnesses failed to appear for their depositions because Apple

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never moved to compel those witnesses to appear. Apple’s argument that the witnesses failed
to appear with only five days remaining in the discovery period is unpersuasive. Motion
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practice remained an available procedure with regard to those witnesses, even if for only a few

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days. Apple failed to satisfy the conditions of Civil Local Rule 54-3(c)(5), so it is not entitled

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to those non-appearance fees.

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Apple is entitled to $33,874.12 for deposition-related costs, as follows:

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EXHIBIT

DESCRIPTION

AMOUNT

ADJUSTMENT

FINAL AMOUNT

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H

Adam Kilker

$1,954.90

$1,295.70

Video

$1,060.00

Video costs, $40.00
surcharge on
transcript for video,
and $619.20 for
expedited
production denied.

Amanda Frlekin

$2,985.08

$1,956.80

Video

$1,361.50

Video costs, $57.00
surcharge on
transcript for video,
and $971.28 for
expedited
production denied.

Elliot Beltzer

$2,558.20

$1,659.80

Video

$1,090.00

Video costs, $47.00
surcharge on
transcript, $761.40
for expedited
production, and
$90.00 for overnight
exhibits denied.

Debra Speicher

$1,969.12

$1,261.70

Video

$1,378.50

Video costs, $54.25
surcharge on
transcript for video,
and $653.17 for
expedited
production denied.

Dean Pelle

$2,424.40

$1,588.40

Video

$1,128.00

Video costs, $44.00
surcharge on
transcript for video,
and $792.00 for
next-day expedited
production denied.

Seth Dowling

$1,893.87

$1,144.80

Video

$1,239.50

Video costs, $50.75
surcharge on
transcript for video,
and $698.32 for
expedited
production denied.

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For the Northern District of California

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Aaron Gregoroff

$2,952.26

Video costs, $63.50
surcharge on
transcript, $975.36
for expedited
production, $55.00
for overnight
delivery denied.

$1,858.40

Video

$1,414.50

Melody Idakaar

$2,161.05

Video costs, $37.25
surcharge on
transcript, $670.50
for next-day
expedited
production, $50.00
for overnight
delivery, and $65.00
for overnight
exhibits denied.

$1,338.30

Video

$1,109.00

P

Peter Jordan

$1,952.65

$892.70 for 1-day
expedited
production denied.

$1,059.95

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Brandon Fisher

$2,060.95

$1,301.05

Video

$961.00

Video costs, $37.25
surcharge on
transcript, and
$722.65 for nextday expedited
production denied.

Carol Monkowski

$1,824.74

$2,628.50

30(b)(6)

$1,552.00

$748.24 for 2-day
expedited
production denied.

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Danya Bonnett

$1,378.37

$424.88 for 2-day
expedited
production denied.

$953.49

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Lauren Feist

$814.25

None.

$814.25

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Brian Krinek

$1,291.30

None.

$1,291.30

V

Paul Benjamin

$709.15

None.

$709.15

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Claudia Wright

$4,586.57

$1,193.40 for 2-day
expedited
production and
$1,115.00 in video
costs denied.

$2,278.17

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Denise YoungSmith

$807.85

None.

$807.85

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Steve Cano

$538.00

None.

$538.00

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Eric Kinder

$945.20

None.

$945.20

AA

Karen Brandon

$1,761.45

None.

$1,761.45

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For the Northern District of California

United States District Court

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BB

Mario Telles

$1,295.59

None.

$1,295.59

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CC

Archie Williams,
Jr.

$773.90

None.

$773.90

DD

Omar Caputo

$382.49

None.

$382.49

EE

Ferenc Paczka

$614.56

None.

$614.56

FF

Masch-Al Malek

$548.06

None.

$548.06

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GG

Ivan Guzman

$942.25

None.

$942.25

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HH

Kathleen Zelasko

$1310.65

$150 for video
stream denied.

$1160.65

II

Lee Borgioli

$999.92

$35.56 for
conference call
denied.

$964.36

JJ

Susan Schneider
(Non-appearance)

$485.28

Denied.

$0

KK

Cherie Coles
(Non-appearance)

$353.24

Denied.

$0

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For the Northern District of California

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Total:
$33,874.12

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3.

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Pursuant to Civil Local Rule 54-3(a)(1), the prevailing party is entitled to filing fees

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FILING FEES.

paid to the Clerk. Apple seeks to recover $985.00 in costs for six filing fees, as follows:
EXHIBIT

DESCRIPTION

AMOUNT

LL

Non-Opposition to Relating
Cases

$61.00

MM

Sealing Motion

$117.00

NN

Response to Motion to Strike

$75.00

OO

Sealing Motion

$182.00

PP

Pro Hac Vice Motion

$305.00

QQ

Sealing Motion

$245.00

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Total: $985.00

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CONCLUSION
For the reasons stated above, Apple is entitled to ZERO for court transcripts, $33,874.12

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for deposition transcripts, and $985.00 for its filing fees, totaling $34,859.12. The Clerk shall

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please tax costs accordingly.

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IT IS SO ORDERED.

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Dated: January 25, 2016.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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