Petroliam Nasional Berhad v. GoDaddy.com, Inc.

Filing 176

OBJECTIONS to re 175 Bill of Costs by Petroliam Nasional Berhad. (Clark, Perry) (Filed on 3/14/2012)

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PERRY R. CLARK, State Bar No. 197101
LAW OFFICES OF PERRY R. CLARK
825 San Antonio Road
Palo Alto, CA 94303
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorney for Plaintiff and Counterclaim Defendant
PETROLIAM NASIONAL BERHAD (PETRONAS)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

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PETROLIAM NASIONAL BERHAD
(PETRONAS),

CASE NO: 09-CV5939 PJH (MEJ)

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Plaintiff,
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vs.

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GODADDY.COM, INC.,

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Defendant.

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OBJECTION TO GODADDY’S BILL OF
COSTS (DOC. NO. 175)

GODADDY.COM, INC.,

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Counterclaimant,
vs.
PETROLIAM NASIONAL BERHAD
(PETRONAS),

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Counterclaim Defendant.
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OBJECTION TO GODADDY’S BILL OF COSTS (DOC. NO. 175)
Case No. 09-CV-5939 PJH

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Plaintiff and Counterclaim Defendant Petroliam Nasional Berhad (“Petronas”) hereby

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objects pursuant to Civil Local Rule 54-2 to the items of cost claimed in Defendant and

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Counterclaimant GoDaddy.com, Inc.’s (“GoDaddy’s”) Bill of Cost (Doc. No. 175). Pursuant to

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Civil Local Rule 54-2(b), the undersigned counsel for Petronas represents that counsel met and

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conferred on March 14, 2012, in an effort to resolve disagreement about taxable costs claimed in

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GoDaddy’s bill of costs but were unable to do so.

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In its Bill of Costs, GoDaddy stated two items of taxable costs:

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Fees for printed or electronically recorded
transcripts necessarily obtained for use in
the case

$10,544.39

Fees for exemplification and the costs of
making copies of any materials where the
copies are necessarily obtained for use in
the case

$6,365.04

Total

$16,909.43

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Petronas objects to both of these items of cost because GoDaddy has failed to attach to its

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bill of costs “[a]ppopriate documentation to support each item of taxable costs claimed” as

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required by Civil Local Rule 54-1. Although GoDaddy states in its bill of costs that it “is

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supported by the Declaration of Joseph G. Fiorino (Exhibit hereto), and Itemized Bill of Costs

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(Exhibit B hereto), and corresponding invoices (Exhibit C hereto),” nothing in any of these

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documents supports the costs claimed. (Doc. No. 175 at 2:14-15).

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With respect to “fees for printed or electronically recorded transcripts,” the

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documentation attached to GoDaddy’s bill of costs fails to support GoDaddy’s request to be

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reimbursed for the claimed costs. Specifically, with respect to Item Nos. 1-6 and 8-13 in the

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“Itemized Bill of Costs” (Exhibit B to GoDaddy’s Bill of Costs), GoDaddy improperly seeks to

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be reimbursed for the costs of more than “[t]he cost of an original and one copy of any

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deposition (including video taped depositions).” Instead, GoDaddy seeks to be reimbursed for as

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OBJECTION TO GODADDY’S BILL OF COSTS (DOC. NO. 175)
Case No. 09-CV-5939 PJH

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many as six transcripts (3 video and 3 stenographic) of a single deposition. See Doc. No. 175-3

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at 2 and 5 (transcripts of deposition of Yeoh Suat Gauk). This is improper because, “[w]ith

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respect to deposition transcripts, Civil Local Rule 54-3(c)(1) allows only ‘[t]he cost of an

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original and one copy of any deposition (including video taped depositions) taken for any

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purpose in the case.’” Affymetrix v. Multilyte Ltd., 2005 WL 2072113*3 (N.D. Cal. 2005)

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(“Here, the Clerk properly disallowed additional costs incurred in videotaping depositions for

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which stenographic written transcripts were also obtained.”); City of Alameda, Cal. v. Nuveen

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Mun. High Income Opportunity Fund, 2012 WL 177566, *3 (N.D. Cal. 2012) (“[T]he costs for

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additional copies of deposition transcripts are not recoverable.”).

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In addition, with respect to Item Nos. 1-6 and 8-13 in the “Itemized Bill of Costs”

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(Exhibit B to GoDaddy’s Bill of Costs), GoDaddy improperly seeks to be reimbursed for

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deposition transcript costs that are not allowed, such as FedEx shipping, expedited processing,

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rough disks, etc. For deposition transcripts, “[s]hippping or expedited delivery charges and

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‘extra’ charges such as ACSII/Mini/E-transcripts are not allowed.” Affymetrix, 2005 WL

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2072113*3; SJA Amoroso Const. Co. v. Executive Risk Indemnity Inc., 2009 WL 962008, *4

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(N.D. Cal. 2009) (“Shipping or expedited delivery charges are not allowable costs”); City of

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Alameda, 2012 WL 177566, *3 (A party may not “recover for the costs of ‘rough’ disks,

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‘miniscripts’ or expedited transcripts in addition to the cost of an original and one copy of a

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deposition permitted under Civil Local Rule 54-3(c)(1).”).

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Accordingly, GoDaddy’s Bill of Costs should be DENIED as to Item Nos. 1-6 and 8-13
in the “Itemized Bill of Costs” (Exhibit B to GoDaddy’s Bill of Costs).
Moreover, with respect to Item Nos. 11-13 in the “Itemized Bill of Costs” (Exhibit B to

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GoDaddy’s Bill of Costs), GoDaddy seeks to recover for the cost of transcripts which are not

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deposition transcripts at all—even though the “Description” column in GoDaddy’s “Itemized

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Bill of Costs” states that they are “Deposition Transcripts, including videotaped depositions.”

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See Doc. No. 175-2 at 2. Instead, the costs GoDaddy seeks to recover for Item Nos. 11-13 are

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for reporters’ transcripts of Court hearings, which are only recoverable if they are “the cost of

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OBJECTION TO GODADDY’S BILL OF COSTS (DOC. NO. 175)
Case No. 09-CV-5939 PJH

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transcripts necessarily obtained for an appeal” or “the costs of a transcript of a statement by a

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Judge from the bench which is to be reduced to a formal order prepared by counsel,” which is

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not the case here.

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As a result, GoDaddy’s Bill of Costs should be DENIED as to Item Nos. 11-13 in the
“Itemized Bill of Costs” (Exhibit B to GoDaddy’s Bill of Costs).

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Petronas also objects to GoDaddy’s item of cost entitled “[f]ees for exemplification and

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the costs of making copies of any materials where the copies are necessarily obtained for use in

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the case.” Specifically, with respect to Item Nos. 14-37 in the “Itemized Bill of Costs” (Exhibit

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B to GoDaddy’s Bill of Costs), the documentation attached to Godaddy’s bill of costs is

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inadequate to determine whether the costs Godaddy claims are the “cost of reproducing

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disclosure or formal discovery documents when used for any purpose in the case [which] is

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allowable” under Civil Local Rule 54-3(d)(2) or are the “cost of reproducing copies of motions,

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pleadings, notices, and other routine case papers [which] is not allowable” under Civil Local

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Rule 54-3(d)(3).

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The declaration of Joseph Fiorino states only that “[a]ll of the costs included in the Bill of

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Costs for reproducing documents for use in the case were necessary and related to disclosure or

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formal discovery documents and exhibits to depositions.” (Doc. No. 175-1 at 4:3-5). Nowhere,

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however, does GoDaddy identify what documents were actually reproduced. Nor does

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GoDaddy state what it did with the reproductions for which it seeks costs or why those

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reproductions were made. The mere fact that a document may be “related to disclosure or formal

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discovery documents and exhibits to depositions” does not render the cost of reproducing such a

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document reimbursable.

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Moreover, the invoices submitted by GoDaddy show that GoDaddy is seeking to be
reimbursed for items that are not properly taxable as costs, including costs for:
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Optical character recognition and “metadata” processing. City of Alameda, 2012

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WL 177566, *5. (N.D. Cal. 2012) (“OCR and metadata extraction are not

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recoverable.”); Computer Cache Coherency Corp. v. Intel Corp., 2009 WL

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OBJECTION TO GODADDY’S BILL OF COSTS (DOC. NO. 175)
Case No. 09-CV-5939 PJH

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5114002*4 (N.D. Cal. 2009) (“[T]he expense incurred for OCR and metadata

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extraction are not recoverable as they are merely for convenience of counsel.”).

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See, for example, Item No. 14-36 in the “Itemized Bill of Costs” (Exhibit B to

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GoDaddy’s Bill of Costs);

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•

Exemplification and copying of documents that were not prepared for use in

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presenting evidence to the court or prepared or tendered for the opposing party.

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United States, ex rel. Meyer v. Horizon Health Corp., 2007 WL 518607*5 (Costs

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for exemplification and copying “must be for [documents] prepared for use in

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presenting evidence to the court or prepared or tendered for the opposing party in

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order to be recoverable.”). See, for example, Item No. 23-36 in the “Itemized Bill

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of Costs” (Exhibit B to GoDaddy’s Bill of Costs);

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Tabs and binders prepared in association with copies of documents. MEMC Elec.

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Materials v. Mitsubishi Materials, 2004 WL 5361246*12 (N.D. Cal. 2004).

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(“[T]he Local Rule does not authorize costs for tabs that are included on one of

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the invoices for copying costs.”). See, for example, Item No. 25-36 in the

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“Itemized Bill of Costs” (Exhibit B to GoDaddy’s Bill of Costs);

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The “intellectual effort” involved in the production of documents. Zuill v.

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Shanahan, 80 F. 3d 1366, 1370 (9th Cir. 1996) (“Fees for exemplification and

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copying ‘are permitted only for the physical preparation and duplication of

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documents, not the intellectual effort involved in their production’” (citing

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Crawford Fitting Company v. J.T. Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494,

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96 L.Ed.2d 385 (1987) the statute “strictly limits reimbursable costs to those

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enumerated in section 1920,” and “a district court may not rely on its ‘equity

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power’ to tax costs beyond those expressly authorized by section 1920.”). See,

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for example, Item No. 14 in the “Itemized Bill of Costs” (Exhibit B to GoDaddy’s

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Bill of Costs);

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OBJECTION TO GODADDY’S BILL OF COSTS (DOC. NO. 175)
Case No. 09-CV-5939 PJH

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Finally, for Item No. 37 in the “Itemized Bill of Costs” (Exhibit B to GoDaddy’s Bill of

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Costs), GoDaddy seeks to be reimbursed its cost for “preparing [a] demonstrative diagram,” but

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GoDaddy has failed to establish that the costs in question are for “preparing a chart . . . to be

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used as an exhibit . . . [that was] reasonably necessary to assist the jury or the Court in

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understanding the issues at trial” as required by Civil Local Rule 54-3(d)(5).

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As such, GoDaddy’s Bill of Costs should be DENIED as to Item Nos. 14-37 in the

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“Itemized Bill of Costs” (Exhibit B to GoDaddy’s Bill of Costs).

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March 14, 2012

LAW OFFICES OF PERRY R. CLARK

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/S/
PERRY R. CLARK
825 San Antonio Road
Palo Alto, CA 94303
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorney for Petroliam Nasional Berhad
(PETRONAS)

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OBJECTION TO GODADDY’S BILL OF COSTS (DOC. NO. 175)
Case No. 09-CV-5939 PJH