eBay Inc. et al v. PartsRiver, Inc.

Filing 185

ORDER TAXING COSTS by Magistrate Judge Laurel Beeler: Granting in part and Denying in part (173) Motion; Granting in part and Denying in part (174) Motion; Granting in part and Denying in part (175) Motion in case 4:10-cv-04947-CW; Granting in part and Denying in part (515) Motion; Granting in part and Denying in part (516) Motion; Granting in part and Denying in part (517) Motion; Granting in part and Denying in part (518) Motion; Granting in part and Denying in part (519) Motion; G ranting in part and Denying in part (520) Motion; Granting in part and Denying in part (521) Motion in case 4:11-cv-01548-CW; Granting in part and Denying in part (155) Motion in case 4:11-cv-01398-CW. (ls, COURT STAFF) (Filed on 4/5/2013) Modified on 4/5/2013 (ls, COURT STAFF).

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

Northern District of California

10

San Francisco Division
EBAY INC., and MICROSOFT
CORPORATION,

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

ORDER TAXING COSTS
No. C 10-4947 CW (LB)

Plaintiffs, Counterclaim-Defendants
13

[ECF Nos. 173 to 175]
v.

14
KELORA SYSTEMS, LLC,
15
16

Defendant, Counterclaim-Plaintiff.
_____________________________________/

17

CABELA’S INC,

18
19

Plaintiff, Counterclaim-Defendant

No. C 11-1398 CW (LB)
[ECF No. 155]

v.

20

KELORA SYSTEMS, LLC,

21

Defendant, Counterclaim-Plaintiff.
_____________________________________/

22

KELORA SYSTEMS, LLC,

23
24
25
26
27
28

No. C 11-1548 CW (LB)

Plaintiff, Counterclaim-Defendant,
v.
TARGET CORPORATION;
AMAZON.COM, INC.; DELL, INC.;
OFFICE DEPOT, INC.; NEWEGG INC.;
COSTCO WHOLESALE CORPORATION;
HEWLETT-PACKARD COMPANY;
AUDIBLE, INC.; and ZAPPOS.COM, INC.,
Defendants, Counterclaim-Plaintiffs.
_____________________________________/
ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

[ECF Nos. 515 to 521]

1

TABLE OF CONTENTS

2
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3
STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
4
I. THE AMOUNTS REQUESTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
5
II. PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
6
ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
7
I. LEGAL STANDARDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
8
A. Awarding Costs To A Prevailing Party Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
9
B. The Burden Under 28 U.S.C. § 1920 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
10
C. Whether Costs For E-Discovery Are Taxable Under 28 U.S. C. § 1920 . . . . . . . . . . . . . 6
11
For the Northern District of California

UNITED STATES DISTRICT COURT

D. Costs: Case No. C 10-4947 (eBay and Microsoft). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
12
1. Recoverability of E-Discovery Costs Generally and For eBay and Microsoft . . . . . . 8
13
14

a. eBay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
b. Microsoft . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

15

2. Transcripts v. Video Depositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

16

E. Costs: Cabela’s Case (C 11-1398) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

17

F. Costs: Target Case (C 11-1548) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

18
19
20
21
22

1.
2.
3.
4.
5.
6.
7.

Dell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Newegg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Amazon, Audible, and Zappos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Costco . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
HP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Office Depot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Target . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

19
20
22
24
27
31
35

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

23
24
25
26
27
28

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

1

INTRODUCTION

2

Kelora is the losing party in three related patent infringement cases. The district court granted

3

summary judgment in favor of, and ordered recovery of costs for, the prevailing parties: (I) eBay

4

and Microsoft in case number C 10-4947 CW (the “eBay case”), (II) Cabela’s in case number C 11-

5

1398 CW (the “Cabela’s case”), and (III) Target, Amazon.com, Audible, Zappos.com, Dell, Office

6

Depot, Newegg, Costco, and Hewlett-Packard (“HP”) in case number C 11-1548 CW (the “Target

7

case”). See Amended Judgment, No. C 10-4947 CW, ECF No. 158. The district court referred the

8

challenges to the clerk’s taxing of costs to this court “for adjudication.” ECF No. 180. The

9

following table summarizes the taxed costs, the parties’ positions now, and the court’s awards.

10

Case

Party

Clerk Taxed

Prevailing
Party’s Position

Kelora’s
Position

Total Amt.
Awarded

10-4947

eBay

$181,765.04

$185,588.04

$19,298.79

$103,473.04

Microsoft

$30,954.27

$34,777.27

$12,876.54

$30,909.82

11-1398

Cabela’s

$29,682.55

$29,682.55

$9,234.75

$28,552.20

11-1548

Dell

$20,082.16

$20,082.16

$2,697.75

$20,082.16

15

Newegg

$28,304.80

$28,304.80

$12,346.70

$28,304.80

16

$101,312.38

$101,312.38

$11,512.29

$28,257.39

17

Amazon
Audible
Zappos

18

Costco

$35,213.17

$35,213.17

$8,225.93

$12,777.97

19

HP

$79,730.30

$79,730.30

$9,510.50

$61,824.40

20

Office
Depot

$29,037.75

$29,037.75

$6,036.05

$21,102.48

21

Target

$8,454.16

$8,454.16

$7,769.30

$8,454.16

$544,536.58

$552,182.58

$99,508.60

$343,738.42

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

13
14

22

TOTAL

23
24

STATEMENT
I. THE AMOUNTS REQUESTED

25

The prevailing parties filed bills of costs for categories that included filing fees, service fees,

26

transcripts, witnesses, printing, and exemplification and copying. See Bills of Costs, eBay Case,

27

ECF Nos. 159-60, Cabela’s Case, ECF No. 150, and Target Case, ECF Nos. 487-93. The clerk

28

awarded costs that included e-discovery costs as “fees for exemplification and the costs of making

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

1

copies” under 28 U.S.C. § 1920(4). Kelora, eBay, and Microsoft timely challenged the awards

2

within seven days under Federal Rule of Civil Procedure 54(d). The chart shows this information.

3

Case

Party

Bill of Costs

Costs Taxed by
Clerk

Kelora’s
Motion to
Review

Prevailing
Party’s Motion
to Review

10-4947

eBay

$187,158.26
ECF 159
(6/6/12)

$181,765.04
ECF No. 172
(7/20/12)

ECF No. 174
(7/26/12)

ECF No. 175
(7/27/12)

Microsoft

$37,420.74
ECF No. 160
(6/6/12)

$30,954.27
ECF No. 171
(7/20/12)

ECF No. 173
(7/26/12)

ECF No. 175
(7/27/12)

11-1398

Cabela’s

$32,276.11
ECF Nos. 132,
150 (6/6/12 and
8/13/12)

$29,682.55
ECF No. 153
(10/10/12)

ECF No. 155
(10/17/12)

N/A

11-1548

Dell

$21,551.79
ECF No. 487
(6/6/12)

$20,082.16
ECF No. 508
(7/19/12)

ECF No. 518
(7/26/10)

N/A

Newegg

$31,161.09
ECF No. 488
(6/6/12)

$28,304.80
ECF No. 509
(7/19/12)

ECF No. 520
(7/26/10)

N/A

$102,866.46
ECF No. 489
(6/6/12)

$101,312.38
ECF No. 510
(7/19/12)

ECF No. 517
(7/26/10)

N/A

16

Amazon
Audible
Zappos

17

Costco

$35,805.34
ECF No. 490
(6/6/12)

$35,213.17
ECF No. 511
(7/19/12)

ECF No. 516
(7/26/10)

N/A

HP

$81,965.14
ECF No. 491
(6/6/12)

$79,730.30
ECF No. 512
(7/19/12)

ECF No. 519
(7/26/10)

N/A

Office
Depot

$29,629.92
ECF No. 492
(6/6/12)

$29,037.75
ECF No. 513
(7/19/12)

ECF No. 521
(7/26/10)

N/A

Target

$9,028.99
ECF No. 493
(6/6/12)

$8,454.16
ECF No. 507
(7/19/12)

ECF No. 515
(7/26/10)

N/A

4
5
6
7
8
9
10

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

13
14
15

18
19
20
21
22
23
24
25
26

II. PROCEDURAL HISTORY

27

Kelora filed ten motions for review generally on the ground that the prevailing parties should not

28

recover e-discovery costs as exemplification and copying costs under section 1920(4). See generally

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

2

1

Kelora’s Motions. The district court referred the motions to this court for adjudication. See Order,

2

eBay case, ECF No. 180. The court held a hearing on April 4, 2013.

3
4

ANALYSIS
The parties dispute (I) their respective legal burdens to establish the sufficiency of the

5

documentation for the itemized costs and (II) the specific itemized costs.

6

I. LEGAL STANDARDS

“Unless a federal statute, these rules, or a court order provides otherwise, costs – other than

9

attorney’s fees – should be allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1). This rule

10

“creates a presumption in favor of awarding costs to a prevailing party.” Ass’n of Mexican-Am.

11

Educators v. State of Cal., 231 F.3d 572, 591 (9th Cir. 2000). The losing party has the burden of

12
For the Northern District of California

A. Awarding Costs To A Prevailing Party Generally

8

UNITED STATES DISTRICT COURT

7

overcoming the presumption by affirmatively showing that the prevailing party is not entitled to

13

costs. See Save Our Valley v. Sound Transit, 335 F.3d 932, 944-45 (9th Cir. 2003).

14

A district court has discretion to deny costs, but it must specify its reasons for doing so. Ass’n of

15

Mexican-Am. Educators, 231 F.3d at 591-92. Examples of reasons that support denying costs

16

include some impropriety on the part of the prevailing party (including misconduct or bad-faith

17

practices), a nominal recovery, a losing party’s indigence or limited financial resources, whether the

18

issues in the case were close or difficult, a chilling effect on civil rights plaintiffs of modest means,

19

and whether the case presented a landmark issue of national importance. See id. at 592; see also

20

Quan v. Computer Sciences Corp., 623 F.3d 870, 888-89 (9th Cir. 2010); Stanley v. Univ. of S. Cal.,

21

178 F.3d 1069, 1079 (9th Cir. 1999); Competitive Techs. v. Fujitsu Ltd., No. C-02-1673 JCS, 2006

22

WL 6338914, at *3 (N.D. Cal. Aug. 23, 2006). Inflated costs sometimes result in “diminished

23

award[s]” and sometimes result in denying of taxable costs altogether. See, e.g., Jansen v.

24

Packaging Corp. of America, 898 F. Supp. 625, 629 (N.D. Ill. 1995).

25
26

Unless otherwise authorized by statute or contract, 28 U.S.C. § 1920 limits the costs that a court
may award under Rule 53(d) to the following:

27

(1) Fees of the clerk and marshal;

28

(2) Fees for printed or electronically recorded transcripts necessarily obtained for use

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

3

1

in the case;

2

(3) Fees and disbursements for printing and witnesses;

3

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

4
(5) Docket fees under section 1923 of this title; [and]
5
6

(6) Compensation of court appointed experts, compensation of interpreters, and
salaries, fees, expenses, and costs of special interpretation services under section
1828 of this title.

7
8
9

N.D. Cal. Civil Local Rule 54-3 provides guidance regarding the taxable costs in each category.
A bill of costs “must state separately and specifically each item of taxable costs claimed.” Civ.

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

12
For the Northern District of California

L.R. 54-1(a). A party seeking costs must provide an affidavit saying that the costs were “necessarily

11
UNITED STATES DISTRICT COURT

10

must be attached to the bill of costs.” Id. “With regard to individual itemized costs, ‘the burden is

13

on the party seeking costs . . . to establish the amount of compensable costs and expenses to which it

14

is entitled.’” City of Alameda v. Nuveen Mun. High Income Opportunity Fund, No. C 08-4575 SI,

15

2012 WL 177566, at *1 (N.D. Cal. Jan. 23, 2012) (quoting Allison v. Bank One-Denver, 289 F.3d

16

1223, 1248-49 (10th Cir. 2002)). The court reviews de novo the clerk’s taxation of costs. See Lopez

17

v. San Francisco Unified School Dist., 385 F. Supp. 2d. 981, 1001 (N.D. Cal. 2005).

18

B. The Burden Under 28 U.S.C. § 1920

19

The parties disagree about who has to show whether the documentation of costs is sufficient.

20

The reason that the parties argue about this is that the processing costs for electronically-stored

21

information (“ESI”) are relatively high, and the parties think that the result about whether Kelora has

22

to pay might vary depending on who has responsibility for establishing (or challenging) the

23

sufficiency of the documentation.

24

The prevailing parties argue that Kelora must justify denial of each line item on their e-discovery

25

invoice. The court disagrees. A prevailing party must itemize its costs with enough detail to

26

establish that they are taxable under section 1920. ESI does not change this, as the undersigned

27

already held in Plantronics, Inc. v. Aliph, Inc.. See No. C 09-01714 WHA (LB), 2012 WL 6761576,

28

at *3 (N.D. Cal. Oct. 23, 2012) (taxing costs for TIFF conversion, OCR, electronic scanning and

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

4

1

conversion to PDF, image endorsement, and electronic reproduction to media; did not tax data

2

processing costs); Oracle Am., Inc. v. Google, Inc., No. C 10-03561 WHA, 2012 WL 3822129, at *3

3

(N.D. Cal. Sept. 4, 2012); City of Alameda, 2012 WL 177566, at *1; accord In re Ricoh Co. Patent

4

Litig., 661 F.3d 1361, 1368 (Fed. Cir. 2011) (applying Ninth Circuit law and denying disputed

5

copying costs to a prevailing party that “did not meet its burden under section 1920 to establish the

6

amount of costs to which it is entitled,” and noting the inadequacy of “generic references such as

7

‘transcripts,’ ‘publication,’ and ‘document production’”) (quoting Fabi Constr. Co. v. Sec’y of

8

Labor, 541 F.3d 407, 414 (D.C. Cir. 2008)); Competitive Techs., 2006 WL 6338914, at *3 (same).

9

Save Our Valley does not change this outcome or excuse a prevailing party from providing that

affirmative reasons for awarding costs to the prevailing party and needs to find that the reasons for

12
For the Northern District of California

its costs are taxable. There, the Ninth Circuit held only that a district court does not need to give

11
UNITED STATES DISTRICT COURT

10

denying costs are not sufficiently persuasive to overcome the presumption for an award. See 335

13

F.3d at 945. Still, as discussed above, a court has to specify its reasons for denying costs. Ass’n of

14

Mex-Am Educators, 231 F.3d at 591.

15

As to what is the “appropriate documentation” of costs that a party must submit under Civil

16

Local Rule 54-1(a), it varies depending on the case. In a simple case with obvious costs, invoices

17

may not be needed, and a counsel’s declaration might be enough. See Chellino v. Kaiser Found.

18

Health Plan, C 07-03019 CRB, 2010 WL 583970, at *6 (N.D. Cal. Feb. 16, 2010) (awarding

19

$921.75 in copying costs; no invoices required; “[t]here is no explicit requirement that counsel

20

attach invoices”); Meier v. U.S., No. C 05-04404 WHA, 2009 WL 982129, at *2 (N.D. Cal. Apr. 13,

21

2009) ($500 in copying costs; no invoices; costs identified in declaration attached to the bill of

22

costs). By contrast, in a large case with ESI, more substantial documentation might be appropriate.

23

For example, in In re Ricoh, a patent infringement case with close to one million dollars in costs, the

24

Federal Circuit, applying Ninth Circuit law, ruled that “invoices and [an] itemized spreadsheet . . .

25

were not specific enough to permit the taxation of . . . costs” because they contained generic

26

statements such as “[d]ocument production.” 661 F.3d at 1368. Vague documentation meant that

27

the reviewing court could not determine what documents were being produced and to what party.

28

Id. Thus, “a bill of costs must represent a calculation that is reasonably accurate under the

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

5

1
2

circumstances.” Id. (internal quotation omitted).
In Oracle America v. Google, the court required “an itemized list with sufficient specificity”

3

from the party seeking three million dollars in costs. 2012 WL 3822129, at *3. Similarly, in

4

Plantronics, this court considered In re Ricoh and Oracle and determined that the prevailing party

5

had failed to itemize its “e-discovery processing costs with sufficient detail to establish that the court

6

should award it any of the ESI processing costs.” 2012 WL 6761576, at *3, *17.

7

In sum, with ESI, vaguely-worded vendor invoices and a declaration that such services were

electronic equivalent of compensable exemplification and copying. That being said, the inquiry is

10

case-specific. Invoices can give sufficient detail. This is just another way of saying that the parties

11

seeking costs are required to provide “enough detail to establish that each expense is taxable under

12
For the Northern District of California

necessarily incurred may not satisfy the prevailing party’s burden to show that the ESI is the

9

UNITED STATES DISTRICT COURT

8

section 1920.” Plantronics, 2012 WL 6761576, at *3; accord Oracle Am., 2012 WL 3822129, at *3;

13

City of Alameda, 2012 WL 177566, at *1; In re Ricoh, 661 F.3d at 1368.

14

C. Whether Costs for E-Discovery are Taxable Under 28 U.S.C. § 1920(4)

15

Under section 1920(4), the court may tax “fees for exemplification and the costs of making

16

copies of any materials where the copies are necessarily obtained for use in the case.” Congress

17

amended section 1920 in 2008 to substitute “the costs of making copies of any materials” for “the

18

costs of copies of papers.” That pulled the electronic equivalent of papers into the arena of

19

compensable costs under section 1920(4).

20

The local rule interprets the statute to provide “[t]he cost of reproducing disclosure or formal

21

discovery documents when used for any purpose in the case.” Civ. L.R. 54-3(d)(2). Taxable costs

22

of copying client documents include the costs of collecting documents, reviewing those documents,

23

and determining which are relevant. Parrish v. Manatt, Phelps & Phillips, LLP, C 10-03200 WHA,

24

2011 WL 1362112, at *2 (N.D. Cal. Apr. 11, 2011) (the process often is costly but the costs

25

nonetheless are taxable). Not all costs attributable to producing discovery are recoverable. For

26

example, copies made solely for counsel’s convenience or the litigant’s own use are not recoverable

27

because they are not “necessarily” obtained for use in the case. Haroco, Inc. v. American Nat’l Bank

28

& Trust Co. of Chicago, 38 F.3d 1429, 1441 (7th Cir. 1994); Computer Cache Coherency Corp. v.

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

6

1

Intel Corp., C-05-01766 RMW, 2009 WL 5114002, at *4 (N.D. Cal. Dec. 18, 2009); Competitive

2

Techs., 2006 WL 6338914, at *8 (finding that multiple sets of copies were made for the attorney’s

3

convenience and therefore non-compensable). Similarly, “intellectual efforts” involved in the

4

production of discovery – including “the research, analysis, and distillation of data incurred in the

5

preparation of documents (as oppose[d] to the cost of physically preparing the documents)” – are not

6

taxable costs. Oracle Am., 2012 WL 3822129, at *3 (citation omitted); accord Romero v. Pomona,

7

883 F.2d 1418, 1428 (9th Cir. 1989) (“fees are permitted only for the physical preparation and

8

duplication of documents, not the intellectual effort involved in their production.”), overruled in part

9

on other grounds in Townsend v. Holman Consulting Corp., 914 F.2d 1136, 1141 (9th Cir. 1990).

“exemplification and the costs of making copies” (and not for the parties’ convenience or

12
For the Northern District of California

The issue here is what kinds of costs attributable to producing ESI are analogous to

11
UNITED STATES DISTRICT COURT

10

attributable to “intellectual effort” involved in document production) such that they are taxable

13

under section 1920(4). To illustrate the arguments in the context of specific e-discovery categories,

14

the court starts with summaries of the costs bills in the eBay/Microsoft case (C 10-4947) and

15

analyzes whether those costs are taxable. After that, the court addresses the other prevailing party

16

submissions seriatim.

17

D. Costs: Case No. C 10-4947 (eBay and Microsoft)

18

These two tables show the clerk’s taxed costs, the parties’ positions, and the court’s awards.

19

eBay Costs By Category, Parties’ Positions, and Award

20

§ 1920 Category

Taxed
Costs

eBay’s
Position

Kelora’s
Position

Court
Award

Fees of the clerk*

$1,350.00

$1,350.00

$1,350.00

$1,350.00

Service of summons and
subpoenas*

$491.61

$491.61

$491.61

$491.61

23
24

Fees for printed or electronically
recorded transcripts

$16,204.91

$20,027.91

$16,204.91

$20,027.91

25

Fees for printing*

$194.00

$194.00

$194.00

$194.00

26

Fees for witnesses*

$1,058.27

$1,058.27

$1,058.27

$1,058.27

27

Fees for exemplification and the
costs of making copies

$162,466.25

$162,466.25

$0.00

$80,351.25

21
22

28

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

7

(* denotes an undisputed cost)

1

Total

$181,765.04

$185,588.04

$19,298.79

$103,473.04

2
3

Microsoft Costs By Category, Parties’ Positions, and Award (* denotes an undisputed cost)
§ 1920 Category

Taxed Costs

Microsoft’s
Position

Kelora’s
Position

Court
Award

5

Fees of the clerk*

$1,350.00

$1,350.00

$1,350.00

$1,350.00

6

Service of summons and
subpoenas*

$491.61

$491.61

$491.61

$491.61

7

$9,976.66

$13,799.66

$9,976.66

$13,799.66

8

Fees for printed or
electronically recorded
transcripts

9

Fees for witnesses*

$1,058.27

$1,058.27

$1,058.27

$1,058.27

Fees for exemplification and
the costs of making copies

$18,077.73

$18,077.73

$0.00

$14,210.28

Total

$30,954.27

$34,777.27

$12,876.54

$30,909.82

4

10

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

13
14
15
16
17

Combined Opp’n Exs. D & E, eBay Case, ECF No. 181-1. Kelora has two challenges: (1) the ediscovery costs are not taxable because they are pre-copying processing, are not substantiated by
adequate documentation, or were not for documents actually produced to Kelora; and (2) eBay and
Microsoft should get stenographic transcripts or the video deposition but not both. Motions, eBay
case, ECF Nos. 173 and 174; Opp’n, ECF No. 178.

18
19
20
21

1. Recoverability of E-discovery Costs Generally
The issue is whether the e-discovery costs are taxable under section 1920(4) as an electronic
“exemplification and the costs of making copies of any materials where the copies are necessarily
obtained for use in the case.” The tables show the categories and the court’s awards (in bold).

22
23
24
25
26

eBay Exemplification Costs By Category
Item

Description

Total Cost

Production Media

Cost of hard drives used to deliver imaged copies of
relevant eBay documents and associated metadata as
requested by Kelora. This cost is analogous to the paper
cost for printed copies.

$ 1,200.00

27
28

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

8

1

Production Setup

Cost of assembling, ordering, tagging, and QA for
document release to Kelora. Includes the creation of
metadata load files as requested by Kelora and image
“placeholders” for documents and ESI that the requesting
party asked to receive in native format.

$ 43,500.00

Production Imaging

Cost of feeding assembled documents into an image printer
for the creation of image copies of those documents to the
requesting party. The cost includes imaging, de-blanking,
bates stamping, assignment of protective orders and
confidentiality designations, insertion of slip sheets, and
native file place holders, image quality QA and final export
to production media.

$ 22,450.00

Source Code

[Cost of] isolating and presenting eBay source code on a
secure and locked down machine in anticipation of
inspection by the requesting party.

$ 1,800.00

Forensic Copy

GGO used forensic best practices to acquire eBay data and
preserve eBay hard drive images to create official certified
copies of the most responsive documents and the most
important deponents.

$ 1,600.00

Nonstandard
acquisition

GGO used forensic tools to acquire eBay data and preserve
eBay Wiki-based and MS Share Point-based server data to
create official copies of the most responsive documents.

$ 8,170.00

13
14

Client Collection

GGO used forensically sound copying tools to acquire eBay
data and preserve eBay email, and other documents to
create official certified copies of all potentially responsive
documents.

$ 44,000.00

Pre-Process Data

GGO used MD5 Hash and SHA1 file fingerprinting
algorithms to certify the integrity of each document at the
time of preservation . . . . Documents such as movie files
and database files were isolated and subjected to preprocessing for ultimate production as non-standard files.

$ 1,631.25

Filter Post for
Review

GGO collected and preserved certified copies of documents
in 24 batch collections on at least 24 separate occasions.
Each batch of collected and preserved documents was
searched based on relevancy filters, date ranges, and
keywords. The cost of isolating potentially relevant
documents creating production draft sets, and recording all
activities and logic.

$ 24,000.00

Data Mining

Use of experts & analytical tools to id terms, concepts, and
people that may be responsive but weren’t contemplated in
initial response filters of key word searches.

$ 14,115.00

2
3
4
5
6
7
8
9
10

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

15
16
17
18
19
20
21
22
23
24
25
Total

$ 162,466.25

26
27
28

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

9

1

Microsoft Exemplification Costs By Category

2

Item

Description

Total Cost

3

Lighthouse Inv. No.
0102213

Index & Keyword Search Terms ($2,420.25)
Native/Near-Native Export ($1,272.00)
Technical Project management ($240.00)

$3,932.25

Lighthouse Inv. No.
0102224

Technical Project management

$60.00

Lighthouse Inv. No.
0102289

Custom case setup/Modification

$75.00

7
8

Lighthouse Inv. No.
0102326

Index & Keyword Search Terms ($1,447.25)
Native/Near-Native Export ($876.00)
Image Export ($120.00)
Technical Project management ($720.00)

$3,163.25

Lighthouse Inv. No.
0102477

Technical Project management

$96.00

12

Lighthouse Inv. No.
0102511

Technical Project management

$60.00

13

Lighthouse Inv. No.
0102527

File conversion native to TIFF ($1.01); Technical
Management ($204.00); Image Export ($168.00)

$373.01

14

Lighthouse Inv. No.
0102557

File conversion native to TIFF ($783.60);
Electronic bates number ($208.96); Image export
($636.00); Technical Project management
($708.00); DVD mastering ($10.00);
Shipping/courier charges ($30.62)

$2,377.18

Lighthouse Inv. No.
0102633

Draft: Case planning & mgmt ($36.00)
Analyze: Data analysis & cons ($96.00)
Analyze: Final check ($120.00)
Create: Database administration ($156.00)
Load: Database administration ($240.00)
Load: Review support ($36.00)
Image processing ($264.00)
Export customization ($384.00)
Standard iQC ($182.50)
iQC Final Check ($60.00)
Deliverable QA ($312.00)
Internal quality check ($216.00)
Custom strategy doc/work plan ($24.00)
File conversion native to TIFF ($1,219.00)
Electronic bates number/POD ($325.28)
Shipping/courier:($32.38); Sales tax ($3.08)

$3,707.04

Lighthouse Inv. No.
0102758

Analyze: Data analysis & cons

$216.05

4
5
6

9
10

For the Northern District of California

UNITED STATES DISTRICT COURT

11

15
16
17
18
19
20
21
22
23
24
25
26
27
28

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

10

1

Lighthouse Inv. No.
0102964

Native conversion to TIFF/PDF ($81.95)
Electronic Bates number/POD ($21.85)
Index & keyword search ($103.25)
DVD mastering ($20.00)
Advanced case planning & mgmt ($96.00)
Native productions ($60.00)
Case planning & mgmt ($228.00)
Data analysis & consulting ($180.00)
Data analysis reports ($36.00)
Database administration ($120.00)
Advanced coding ($60.00)
Deliverable QA ($552.00)
File text extraction ($96.00)
Image check/reformatting ($10.00)
Native export ($516.00)
Image Export ($60.00)

$2,241.05

Lighthouse Inv. No.
0103042

Hard drives up to 250 GB ($400.00)
Advanced Case Planning & Mgmt. ($60.00)
Case Planning & Management ($60.00)
Deliverable QA ($156.00)

$714.00

Lighthouse Inv. No.
0103115

Data Analysis & Consulting ($120.00)
Shipping/courier charges ($139.68)

$272.95

Document Technologies Inv.
No. 619030

Copy of Microsoft (Kelora) source code ($540.00)
Hard Drive Media ($250.00)

$790.00

14
15

Total

16

Combined Opp’n Exs. D and E, eBay Case, ECF No. 181-1.

2
3
4
5
6
7
8
9
10

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

13

17

$18,077.78

Even before the 2008 substitution in section 1920(4) of “costs of making copies of any

18

materials” to “costs of making copies,” courts recognized that electronic copying (such as scanning)

19

can be taxed under section 1920(4). See Plantronics, 2012 WL 6761576, at *12 (collecting cases).

20

Applying that reasoning, this court held in Plantronics that “exemplification” includes scanning

21

and converting electronically-stored files in native format to ADOBE or TIFF format. Id. The

22

court also awarded costs for ancillary tasks that are common to electronic or paper discovery,

23

including Bates stamping (including electronic Bates stamping), putting information on media such

24

as a CD, DVD, or hard drive, and putting slipsheets or a marker to establish document breaks. Id.

25

(collecting and analyzing cases). Without this organization, any copy is relatively useless.1

26
27
28

1

As the court observed in Plantronics, documents come in all sorts of formats, including
paper, scanned documents, and native files. Id. at *13. Yesterday’s “necessary” paper document
can be supplanted by today’s email that is produced with extracted metadata that gives necessary

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

11

1

The Plantronics order also reached the conclusion that other collection and processing costs

2

ordinarily are not compensable under 1920(4) and instead are non-taxable costs that are either (a)

3

for the convenience of the parties or (b) akin to “intellectual effort” involved in the production of

4

documents or the research, analysis, and distillation of data. See id. at *13-15 (analyzing cases).

5

Some costs might be compensable if they are part of the necessary efforts to make information

6

readable. See Petroliam Nasional Berhad v. GoDaddy.com, Inc., No. C 09-5939 PJH, 2012 WL

7

1610979, at *4 (N.D. Cal. May 8, 2012) (allowing $6,365.04 for work by technicians to convert

8

computer data into a readable format). This is why TIFF conversion is compensable. But often e-

9

gathering and e-processing costs are not the equivalent of the “physical preparation and duplication

Alsup’s approach in Oracle Am., 2012 WL 3822129, at *3). Instead, they are analogous to the

12
For the Northern District of California

of documents” that is compensable. Plantronics, 2012 WL 6761576, at *14 (applying Judge

11
UNITED STATES DISTRICT COURT

10

gathering and processing costs and “intellectual effort” such as organizing, searching, and

13

analyzing discovery documents. See id. As Judge Alsup held in Oracle America, these expenses

14

are not taxable under section 1920(4). 2012 WL 3822129, at *3.

15

In re Ricoh does not alter this conclusion. There, the court awarded costs that included hosting

16

services. 661 F.3d at 1364-66. The parties agreed, however, to native production (a cost that the

17

court also taxes here) and shared use of a vendor and division of costs. Id. Thus, the court awarded

18

the costs of the production. Id.

19

Applying this approach here means that costs recoverable for the following: scanning paper

20

documents, electronic scanning and conversion to PDF, TIFF conversion, OCR, image

21

endorsement/Bates stamping, slip sheet preparation, blowback scanning paper documents, media

22

hardware used for production, electronically stamping Bates numbers, slipsheet preparation,

23
24
25
26
27
28

information about, for example, the date it was created. Id. Evolving technology can change what is
“necessarily obtained for use in the case” under section 1920(4). See id. Courts vary and evolve
about what they will tax as costs. See id. Some have treated scanning as “for the convenience of
counsel,” and others allow scanning and converting to TIFF format. Id. (comparing Roehrs v.
Conesys, Inc., No. 3:05-CV-829-M (BH), 2008 WL 755187, at *3 (N.D. Tex. Mar. 21, 2008)
(scanning is for the convenience of counsel), with Race Tires America, Inc. v. Hoosier Racing Tire
Corp., 674 F.3d 158, 166-169 (3d Cir. 2012) (allowed costs for scanning, converting to TIFF format,
and transferring from VHS to DVD)).

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

12

1

blowback preparation, and OCR conversion. Kelora does not dispute this approach (though it

2

disputes some costs that the court assesses). See, e.g., Kelora Motion re: Costco costs, Target Case,

3

ECF No. 516 at 10 & Ex. 1. The court also taxes certain processing costs tied to specific

4

productions as part of the copying process, productions in agreed-to native format, and load files

5

necessary to read information. The costs are not limited to documents introduced into the record or

6

at a hearing or trial and instead are allowed for “the cost of reproducing disclosure or formal

7

discovery documents when used for any purpose in the case.” N.D. Cal. Civil L. R. 54-3(d). The

8

documents must have been prepared for or tendered to Kelora. See U.S. ex rel. Meyer v. Horizon

9

Health Corp., C 00-1303 SBA, 2007 WL 518607, at *5 (N.D. Cal. Feb. 13, 2007); accord City of

10

Alameda, 2012 WL 177566, at *5; Computer Cache, 2009 WL 5114002, at *3.
Before turning to a line-item scrutiny of the invoices, another issue is whether the parties’

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

agreement about the production of ESI changes this conclusion. As the Plantronics order points

13

out, the parties’ agreement about the form of production might militate in favor of imposing costs

14

on the non-prevailing party. 2012 WL 6761576, at *15. The parties agreed to the following here:

15

The parties agree presumptively to produce non-source code documents in an electronic
format to be agreed upon (e.g. TIFF files with a Concordance compatible load file) and to
reasonably accommodate one another’s request for OCR and load-file information to allow
processing of production documents by the receiving party. Additionally, the parties agree
to reasonably accommodate one another’s requests for production of certain documents in
native format, such as financial information in native Excel format, to facilitate use by each
party and their experts.

16
17
18
19

Combined Opp’n, ECF No. 181 at 11 (citing Joint CMC Statement, ECF No. 38, at 8:8-15). The

20

agreement supports the approach of taxing costs associated with native productions and load files

21

and does not change the conclusion that other costs geared toward distilling data are not taxable

22

under section 1920(4).

23
24

The next sections analyze the line items for eBay and Microsoft.
(a) eBay

25

As Kelora points out, eBay did not include actual invoices from Gallivan, Gallivan, and

26

O’Melia, LLC (“GGO”), which would have been better. The declarations and descriptions are

27

detailed, however, and the court can tell from eBay’s submissions of Gallivan invoices that the

28

summary in the declaration reflects the content of the invoices. See Combined Opp’n Ex. D, eBay

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

13

1
2
3
4

Case, ECF No. 181-1. The specific line items and outcomes are as follows:
“Production media” ($1,200.00) is taxable because the media are the means of delivering the
discovery. See Plantronics, 2012 WL 6761576, *17.
“Production imaging” ($22,450.00) is taxable because it is the electronic conversion tasks that

5

are analogous to photocopying. The category includes compensable routine production tasks:

6

electronic Bates stamping, de-blanking, the insertion of slip sheets and native file placeholders, and

7

putting data on media. See Plantronics, 2012 WL 6761576, at *12.

8

“Production Setup” ($43,500.00) are costs of the document release to Kelora including load

9

files and place holders for documents and ESI that the parties asked to receive in native file format.

10

“Source Code” ($1,800.00) is taxable because the patent local rules mandate its presentation to
Kelora for inspection. N.D. Cal. Patent L.R. 3-4(a); see Combined Opp’n Ex. D, eBay Case, ECF

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

No. 181-1, ¶ 4.

13

Applying the presumption in favor of costs, the court also finds that the detail is sufficient to tax

14

“Forensic Copy” ($1,600.00) and “Nonstandard acquisition” ($8,170.00) because they are tied to

15

providing copies of the “most responsive documents.” “Pre-process data” ($1,631.25) is about

16

integrity of documents geared toward ultimate production and – while possibly geared toward a

17

higher set of potentially responsive material – is a modest and necessary cost that the court –

18

exercising its discretion – can tax.

19

The remaining categories are as follows: “Client Collection,” “Filter Post for Review,” and

20

“Data Mining.” On this record, the court concludes that these are acts of collection and searching

21

data by GGO (the gathering and processing of information) that the court – applying Oracle –

22

found are not taxable. See Plantronics, 2012 WL 6761576 at *16-17. As a separate ground, the

23

court holds that eBay did not itemize the e-discovery processing costs with enough detail to

24

establish that the court should award it any of the ESI processing costs. See Civ. L. R. 51(a)

25

(affidavit and documentation must support each item claimed on the bill of costs); see, e.g.,

26

Production Setup (references image placeholders). As the court said in Plantronics,

27
28

[T]he court’s view is that the capture, processing, and segregation of data in the in-house
processing is separate from the TIFF conversion and appears to be the e-gathering and
processing efforts that Oracle America disapproved. If any part of that process is closer to

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

14

1
2

the TIFF conversion process, conceivably some greater portion of the $113,374.50 could be
compensable. The court cannot tell whether this is so from the record and thus concludes
that [the prevailing party] . . . did not establish sufficiently any ESI processing costs that it
might recover.

3
2012 WL 6761576, at *17. At the hearing, eBay said that the award of costs is “clerical.” A
4
prevailing party still must show that the costs are taxable. See Oracle Am., 2012 WL 3822129, at
5
*3. The court cannot tell from the submissions whether the expenses are taxable.
6
In sum, the court taxes total e-discovery costs of $80,351.25.
7
(b) Microsoft
8
Microsoft’s e-discovery vendors billed $18,077.73 for “the cost of making source code
9
available for inspection . . . and for producing other documents in the format specified by Kelora.”
10
See Combined Opp’n Ex. E, eBay Case, ECF No. 181-1, ¶ 8.
11
For the Northern District of California

UNITED STATES DISTRICT COURT

The court taxes the items bolded in the table totaling $14,210.28. Some are processing costs
12
(such as technical project management fees) but – given the presumption for taxation and the detail
13
in the invoices – the court taxes the costs that have a nexus to specific productions. Applying the
14
Plantronics analysis, the court does not award costs for e-gathering and processing efforts and also
15
exercises its discretion because the invoices do not establish that the processing is taxable. See
16
Plantronics. 2012 WL 5269667, at *17
17
2. Transcripts v. Video Depositions
18
The second issue is whether eBay and Microsoft should receive the costs of the video
19
depositions. The clerk taxed only written transcripts and disallowed video depositions. See ECF
20
Nos. 171-72. The contested amount are $3,823.00 for eBay and $3,823.00 for Microsoft. eBay and
21
Microsoft Motion to Review, ECF No. 175 at 5. Kelora does not dispute the math and argues that
22
eBay and Microsoft ought to get one or the other, but not both. Kelora Opp’n, ECF No. 178.
23
Civil Local Rule 53(c)(1) states that the “cost of an original and one copy of any deposition
24
(including video taped depositions) taken for any purpose in connection with a case is allowable.”
25
The rule allows taxing of costs for video depositions. The Ninth Circuit has not addressed the
26
issue. Recent Federal Circuit and district court decisions have permitted taxation of costs both for a
27
stenographic transcript and a video deposition in appropriate circumstances. See, e.g., In re Ricoh,
28

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

15

1

661 F.3d at 1370 & n.5 (applying N.D. Cal. Civil L.R. 54-3(c)(1)); Meier, 2009 WL 982129, at *1.2

2

Kelora argues that only stenographic exhibits were submitted as part of the summary judgment

3

motions and thus video depositions were not necessary costs. Kelora Opposition, eBay Case, No.

4

178 at 4. Still, Civil Local Rule 54-3(c)(1) permits costs for depositions “taken for any purpose in

5

connection with the case.” Some courts have rejected costs for video taping when costs for written

6

transcripts were taxed. See In re Ricoh, 661 F.3d at 1370 n.5 (noting this).3 In patent cases, costs

7

for both have been allowed as “commonplace practice.” See, e.g., id. at 1370. The court taxes both

8

as appropriate expenses here.

9
10

E. Costs: Cabela’s Case (C 11-1398)
The following table has the clerk’s taxed costs, the parties’ positions, and the court’s awards.
Cabela’s Costs By Category, Parties’ Positions, and Award (* denotes an undisputed cost)

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

§ 1920 Category

Taxed Costs

Cabela’s
Position

Keloria’s
Position

Award

Fees of the clerk*

$350.00

$350.00

$350.00

$350.00

$130.00

$130.00

$130.00

$130.00

15

Service of summons and
subpoenas*

16

Fees for printed or electronically
recorded transcripts

$12,516.10

$12,516.10

$8,754.75

$11,385.75

17

Fees for exemplification and costs
of making copies

$16,686.45

$16,686.45

$0.00

$16,686.45

Total

$29,682.55

$29,682.55

$9,234.75

$28,552.20

13
14

18
19
20

Kelora has two challenges: (1) e-discovery costs are not (a) substantiated by sufficient

21
22
23
24
25
26
27
28

2

See also Hynix Semiconductor v. Rambus Inc., 697 F. Supp. 2d 1139, 1150 (N.D. Cal.
2010); Asyst Techs. v. Emtrak Inc., No. C 98-20451 JF, 2009 WL 668727, at *2 (N.D. Cal. 2009);
Fresenius Medical Care Holdings, Inc. v. Baxter Intern., No. C 03-1431 SBA, 2008 WL 2020533, at
*6 (N.D. Cal. 2008); Pixion Inc. v. Placeware Inc., No. C 03-02909 SI, 2005 WL 3955889, at *2
(N.D. Cal. 2005); MEMC Electronic Materials v. Mitsubishi Materials, No. C-01-04925 SBA (JCS),
2004 WL 5361246 *3-5 (N.D. Cal. 2004).
3

See also Affymetrix, Inc. v. Multilyte Ltd., No. C 03-03779 WHA, 2005 WL 2072113, at *2
(N.D. Cal. Aug. 26, 2005); ATS Products, Inc. v. Ghiorso, No. C 10-4880 BZ, 2012 WL 1194151, at
*1, n.3 (N.D. Cal. Apr. 10, 2012) (allowing cost of either a written transcript or video); Pierson v.
Ford Motor Co., No. C 06-6503 PJH, 2010 WL 431883, at *4 (N.D. Cal. Feb. 2, 2010).

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

16

1

supporting documentation or (b) compensable because the costs are attributable to pre-production

2

processing; and (2) transcripts are not fully compensable because either (a) there was no prior court

3

order authorizing the costs as recoverable or (b) Cabela’s should get stenographic transcripts or the

4

video depositions but not both. Motion, Cabela’s Case, ECF No. 155 at 5.

5
6

1. E-discovery Costs
Cabela’s spent $16,646.45 for “reproducing, copying, and other document fees necessarily

7

incurred in this case, including imaging and converting electronic documents for reproducing

8

disclosure or formal discovery documents to Kelora.” Sitrick Decl., Ex. G-1, ECF No. 181.

9

Declarations from the law firm’s in-house litigation technology specialists say that they

the software program Summation for reviewing and processing and converting into production

12
For the Northern District of California

“process[ed] and convert[ed] files received from Cabela’s to be produced in discovery to load into

11
UNITED STATES DISTRICT COURT

10

format.” Id., Kemper Decl. & Leftwich Decl., Ex. E-1 to Ex. G, ECF No. 181. The Kemper and

13

Leftwich declarations list the amounts they spent on copying discovery: $7,913.00 and $5,540.00,

14

respectively, totaling $13,453.00. Id. Attached to their declarations are Invoices 1747767 and

15

1720152, which are billing summaries without any detail totaling $20,094.00 (apparently showing

16

that their work covered more than the $13,453.00 in copying costs). Then, more invoices reflect

17

copying costs totaling $3,233.45. Ex. E-2 to Ex. G, ECF No. 181. This table shows the costs.

18

Cabela’s Exemplification Costs By Category

19

Item

Description

Total Cost

20

Q & B Inv. No. 1677408

Color copy and copy charges - Cabela’s CD
blowback $133.20 + $12.90)

$ 146.10

Q & B Inv. No. 169076

Copy charges

$ 82.40

Q & B Inv. No. 1702061

Copy charges

$ 271.90

23

Q & B Inv. No. 1706581

Color copy and copy charges

$ 971.10

24

Q & B Inv. No. 1727610

Copy charges

$ 437.20

25

Q & B Inv. No. 1747767

Color copy and copy charges

$ 1,023.10

26

Luce Forward Inv. No.
6708512

Photocopying

$ 8.85

27

Luce Forward Inv. No.
6723169

Photocopying

$ 260.25

21
22

28

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

17

1

Photocopying

$ 16.50

2

Luce Forward Inv. No.
6739486

3

Luce Forward Inv. No.
6744693

Photocopying

$ 16.05

4

Total

5
6
7
8
9
10

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

Kelora argues that this detail is not sufficient. The declarations are not very precise. Still,
given the tethering by the information specialists of the “copying” to “discovery,” and given that
the information arrived from Cabela’s to the law firm, where it was placed in the software program
Summation, which is a document review platform, the court awards the $13,453. The additional
$3,233.45 is for copying, and, given the presumption in favor of costs and counsel’s declaration that
the costs “necessarily were obtained for use in the case,” it is not different than the declaration in
Meier. See 2009 WL 982129, at *2. Other cases have required more, but the nature of the case is
such that the copying costs are relatively modest. The court awards them.

13
14
15
16
17
18
19
20
21
22

$ 3,233.45

2. Transcripts
Cabela’s asked for $15,084.66, and the clerk awarded $12,516.10. Kelora says that the total
amount should be $8,754.75. Kelora Motion, Cabela’s case, ECF No. 155 at 17 and Ex. 1.
The court allows the cost of videotaping (including technician fees and the video) and one
transcript. See Plantronics, 2012 WL 6761576 at *7. The court disallows the following: (a)
$1,848.56 for expedited delivery charges, see Asis Internet Services v. Optin Global, Inc., No.
C-05-5124 JCS, 2008 WL 5245931, at *6 (N.D. Cal. Dec. 17, 2008) (expedited delivery not
taxable); Affymetrix, 2005 WL 2072113, at *2 (same); (b) $34.65 in conference calls, see
Intermedics, 1993 WL 515879, at *8; and (c) $2,295.70 for extra transcripts.4
The court allows $222.00 for the transcript from the summary judgment and non-infringement

23
24
25
26
27
28

4

$2,295.70 is calculated as follows: Larsen: Condensed Transcript ($27.50), E-cd ($30.00),
Color laser (87.00); Livenote ($152.25), Rough Draft ($130.50); Fortna Vol. 1: Condensed
Transcript ($27.50), E-cd ($30.00); Fortna Vol. 2: Condensed Transcript ($27.50), E-cd ($30.00);
Wynkoop: Condensed Transcript ($27.50), E-cd ($30.00); Kimbrough: Rough ASCII ($325.00), CD
Depo ($39.00); Danish: Rough ASCII ($364.00), CD Depo ($39.00); Danish 30(b)(6): CD Depo
($39.00), Rough ASCII ($348.60); Gafford: Realtime ($229.35), CD Depo ($39.00); Pampinella:
Realtime ($234.00), CD Depo ($39.00). See Combined Opp’n, Ex. G, ECF No. 181.

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

18

1

hearing. See Docket Entries, Cabela’s Case, ECF Nos. 57, 98-99. Kelora argues that the court did

2

not authorize the expense before it was incurred. Kelora Motion, ECF No. 155 at 17; see Civ. L.R.

3

54-3(b)(3) (cost of transcripts “is not normally allowable unless, before it is incurred, it is approved

4

by a Judge or stipulated to be recoverable by counsel”). Nonetheless, courts allow costs for

5

transcripts of important hearings. See, e.g., Competitive Techs., 2006 WL 6338914, at *6;

6

Affymetrix, 2005 WL 2072113, at *2 (transcripts in contentiously-litigated cases); cf. Hynix

7

Semiconductor, 697 F. Supp. 2d at 1148-50 (disallowed costs for transcripts of relatively

8

unimportant hearings regarding a motion to compel a deposition, a discovery dispute, and a motion

9

for a protective order). After the hearing, the district court ordered additional discovery and
briefing. See Order, Cabela’s Case, ECF No. 98. Given that the transcript was likely important for

11

drafting Cabela’s supplemental brief, ECF No. 102, the court awards the costs.

12
For the Northern District of California

UNITED STATES DISTRICT COURT

10

13

The documentation is sufficient. Cabela’s submitted invoices from litigation support providers,
and the declaration states that the invoices were paid. See Combined Opp’n Ex. G., ECF No. 181.

14

The total taxed costs in this category are $11,385.75.

15

F. Costs: Target Case (C 11-1548)

16
17

1. Dell
The following table has the clerk’s taxed costs, the parties’ positions, and the court’s awards.

18

Dell Costs By Category and Parties’ Positions (* denotes an undisputed cost)

19

§ 1920 Category

Taxed Costs

Dell’s Position

Kelora’s
Position

Award

Fees of the clerk*

$305.00

$305.00

$305.00

$305.00

Fees for printed or
electronically recorded
transcripts*

$2,392.75

$2,392.75

$2,392.75

$2,392.75

Fees for exemplification and
the costs of making copies*

$17,384.41

$17,384.41

$0.00

$17,384.41

24
25

Total

$20,082.16

$20,082.16

$2,697.75

$20,082.16

20
21
22
23

26
27

The following table has Dell’s e-discovery costs.

28

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

19

1

Dell’s Exemplification Costs By Category

2

Item

Description

Total Cost

3

Advanced Discovery Inv. No.
B32014

Tier 2 Processing: Includes metadata and text
extraction with native file links (Bates Range:
Numbered Per Custodian) (P400) RE: VOL 001

$36.30

Advanced Discovery Inv. No.
B32017

Tier 2 Processing: Includes metadata and text
extraction with native file links - per GB (P400Linear)

$44.00

Advanced Discovery Inv. No.
B32034

Tier 2 Processing: Includes metadata and text
extraction with native file links VOL 004:
THARGREAVES00000001 - 000083801)
(P400, Linear)

$5,095.20

Advanced Discovery Inv. No.
B35156

Tier 2 Processing: Includes metadata and text
extraction with native file links - per GB (P400,
Linear) (VOL005 - VOL009)

$7,191.58

Advanced Discovery Inv. No.
B39801

Tier 2 Processing: Native File Processing:
Includes metadata and text extraction with native
file links - Linear Search - per GB (P400)

$2,825.08

Advanced Discovery Inv. No.
B39801

Tier 4 Production: Electronic File Conversion B&W; includes metadata and text extraction,
image files and native file links - per GB;
Includes up to DELL146821: (P600)
Continuing hosting and user fees, professional
services and technical time included at no
additional charge per agreement

$2,192.25

4
5
6
7
8
9
10

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

13
14
15
16
17
18
19
20

Total

$17,384.41

The Tier 4 charge for $2,192.25 is for production, and it is taxable. The invoice reveals
sufficiently what the vendor did, and the declaration establishes that Dell paid it.
The other charges are processing costs. The third charge for $5,095.20 is linked to specific

21

bates-stamped productions and reflects metadata and text with native file links, which are

22

productions contemplated by the parties’ ESI agreement. See supra page 13. The court awards it.

23

The rest are also conversion and processing costs linked to the specific productions. The modest

24

charges (.11 per page for the 162,000 pages) support the conclusion that the e-discovery costs are

25

the electronic equivalent of copying. The court taxes the full $17,384.41.

26
27

2. Newegg
The following table has the clerk’s taxed costs, the parties’ positions, and the court’s awards.

28

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

20

1

Newegg Costs By Category and Parties’ Positions (* denotes an undisputed cost)

2

§ 1920 Category

Taxed Costs5

Newegg’s Position

Kelora’s Position

Award

3

Fees of the clerk*

$855.00

$855.00

$855.00

$855.00

4

Fees for printed or
electronically recorded
transcripts*

$9,953.31

$9,953.31

$9,953.31

$9,953.31

6

Fees for exemplification
and costs of copies

$17,496.49

$17,496.49

$1,538.39

$17,496.49

7

Total

$28,304.80

$28,304.80

$12,346.70

$28,304.80

5

8
9

The following table has Newegg’s e-discovery costs.

Item

Description

Total Cost

12
For the Northern District of California

Newegg’s Exemplification Costs By Category

11
UNITED STATES DISTRICT COURT

10

Clicks Inv. No.
1149122

Imaging and Production
Hourly charge (load file creation): $80.00
CD creation: $26.85
Sales Tax: ($8.31)

$115.16

Clicks Inv. No.
1149950

Imaging and Production
Electronic Image Redaction ($72.12)
Image OCR ($108.18)
Image Endorse, NEGG 000001-003606 ($36.06)
CD Creation ($17.90)
Sales Tax ($18.22)

$252.48

Clicks Inv. No.
1150034

Imaging and Production
Hourly Charge (Document Prep) multiple CDs ($40.00)
Electronic Image Redaction ($80.94)
Image Endorse, NEGG003607-7660 ($40.47)
CD Creation ($17.90)
Sales Tax ($13.95)

$193.26

Clicks Inv. No.
1150380

Imaging and Production
Electronic Image Redaction ($153.72)
Image Endorse ($76.86)
CD Creation ($17.90)
Sales Tax ($19.33)

$267.81

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

5

$225.20 was for another case and is subtracted. Combined Opp’n, ECF No. 181 at 28, 33.

28

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

21

1
2

Clicks Inv. No.
1152241

Imaging and Production
Extract Images from Summation ($80.00)
OCR Images ($965.91)
Branding, NEGG018042 - 050238 ($321.97)
DVD, 1 Summation, 1 Concordance ($30.00)
CDs for loading into Summation, upload,
move into folders ($80.00)
Sales Tax ($114.95)

$1,592.83

Clicks Inv. No.
1152355

Imaging and Production
Tech Time (load file creation) ($40.00)
CD Creation ($8.95)
Sales Tax ($3.81)

$52.76

Clicks Inv. No.
1152729

Imaging and Production
Manually select docs from customer ($40.00)
Match metadata and extracted text to loaded files
($80.00)
Redact old control numbers ($118.76)
Branding ($59.38)
Sales Tax ($23.19)

$321.33

Clicks Inv. No.
1153070

Imaging and Production
Set up volumes for Summation ($200.00)
Media Creation 1 DVD ($8.95)
Sales Tax ($16.25)

$225.20

Clicks Inv. No.
1153773

Imaging and Production
Tech Time ($80.00)
CD/DVD creation ($26.85)
Sales Tax ($8.31)

$115.16

e-Stet Inv. No.
L002081.01

Imaging and Production
Native file processing ($5,512.5)
Conversion to TIFF ($10,400.00)
Technical services ($875.00); USB drive ($255.00)
Messenger ($186.00); FedEx ($132.00); Discount:
$3,000.00

$14,360.50

3
4
5
6
7
8
9
10

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

13
14
15
16
17
18
19
20

Total

$17,496.49

21
22
23
24

Combined Opp’n Ex. J, ECF No. 181. The invoices show production costs that are taxable.
3. Amazon, Audible, and Zappos
The following table has the clerk’s taxed costs, the parties’ positions, and the court’s awards.

25

Amazon Costs By Category and Parties’ Positions (* denotes an undisputed cost)

26

§ 1920 Category

Taxed Costs

Amazon’s
Position

Kelora’s Position

Award

27

Fees of the clerk*

$281.00

$281.00

$281.00

$281.00

28

Fees for printed or
electronically recorded
transcripts*

$11,231.29

$11,231.29

$11,231.29

$11,231.29

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

22

1

$89,800.00

$89,800.00

$0.00

$16,745.10

2

Fees for
exemplification and the
costs of making copies

3

Total

$101,312.29

$101,312.29

$11,512.29

$28,257.39

4
5
6

The following table has Amazon’s e-discovery costs.
Amazon’s Exemplification Costs By Category

7

Item

Description

Total Cost

8

Hudson Inv. No.
0295029-03A

1st Pass Review, Project Management and Quality
Control

$12,078.99

eLit Inv. No. 17154

eData to TIFF Conversion ($137.50)
Data Management ($218.75)
Sales Tax ($33.84)

$390.09

eLit Inv. No. 18271

Electronic Bates Numbering ($41.17)
Data Filtering/Key Word Searching ($16,800.00)
Edata Conversion to TIFF ($6,600.00)
Data Management . . . ($2,406.25)
Relativity Monthly Data Usage & Storage ($638.80)
Monthly User Access Fee ($300.00)
CDs Burned- Production ($30.00)
Shipping Charges ($93.78)
Sales Tax ($2,556.45)

$29,466.45

eLit Inv. No. 18558

Electronic Bates Numbering ($120.89)
Data Filtering/Keyword Searching ($21,575.00)
Edata Conversion to TIFF ($687.50)
Data Management ($1,250.00)
Relativity Data Usage & Storage Fee ($650.40)
User Access Fee ($300.00)
CDs Burned - Production ($30.00)
Shipping Charges ($93.78)
Delivered on Hard Drive ($350.00)
Zappos Travel Expenses ($1,577.00)
Sales Tax ($2,530.28)

$29,164.85

eLit Inv. No. 18890

Data Filtering/Key Word Searching ($7,750.00)
Edata Conversion to TIFF ($275.00)
Electronic Bates Numbering ($74.17)
Data Management ($2,031.25)
Relativity Data Usage & Storage Fee ($693.20)
User Access Fee ($600.00)
CDs Burned - Production ($40.00)
CDs Duplicated ($40.00)
Shipping Charges ($291.55)
Sales Tax ($1,120.54)

$12,915.71

9
10

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

23

1

eLit Inv. No. 19235

Data Management - Processing ($125.00)
Relativity Data Usage & Storage Fee ($693.20)
User Access Fee ($600.00)
Shipping Charge ($59.40)
Sales Tax ($140.37)

$1,617.97

eLit Inv. No. 19567

Data Management - Processing ($125.00)
Relativity Data Usage & Storage Fee ($693.20)
User Access Fee ($600.00)
Sales Tax ($134.73)

$1,552.93

eLit Inv. No. 19878

Relativity Data Usage & Storage Fee ($693.20)
User Access Fee ($500.00)
Sales Tax ($113.35)

$1,306.55

eLit Inv. No. 20133

Relativity Data Usage & Storage Fee ($693.20)
User Access Fee ($500.00)
Sales Tax ($113.35)

$1,306.55

2
3
4
5
6
7
8
9
10

Total

$89,800.09

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11
Combined Opp’n Ex. K, ECF No. 181 at 40-48.

13

The bolded costs total $15,292.33, they are related to production and include data management

14

fees tied to specific productions, and the court awards them plus 9.5% tax for a total of $16,745.10.

15

The invoices are sufficient documentation. The other fees are processing, data gathering, and

16

storage, and the invoices do not provide a basis for concluding that they are exemplification or

17

copying. See Civil L. R. 51(a); Plantronics, 2012 WL 676156 at *17.
4. Costco

18
19

The following table has the clerk’s taxed costs, the parties’ positions, and the court’s awards.

20

Costco Costs By Category and Parties’ Positions (* denotes an undisputed cost)

21

§ 1920 Category

Taxed Costs

Costco’s Position

Kelora’s Position

Award

22

Fees of the clerk*

$281.00

$281.00

$281.00

$281.00

23

Fees for printed or
electronically recorded
transcripts*

$3,944.93

$3,944.93

$3,944.93

$3,944.93

Fees for exemplification
and the costs of making
copies

$30,987.24

$30,987.24

$4,000.00

$8,552.04

Total

$35,213.17

$35,213.17

$8,225.93

$12,777.97

24
25
26
27
28

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

24

1

The next table shows Costco’s e-discovery costs.

2

Costco’s Exemplification Costs By Category

3

Item

Description

Total Cost

4

Kiersted Inv. No.
FJ2531108

Process Data - Output (Images): $20.85
5% Discount: ($1.04)
Sales Tax: $1.31

$21.12

Kiersted Inv. No.
FJ2531111

Process Data - Output Images: $331.18
Data reduction (de-nist/de-dupe): $56.70
10% Discount: ($37.79)
Sales Tax: $23.04

$372.13

Kiersted Inv. No.
FJ2551111

Process Data – Output (Native): $403.00
Process Data – Output (Images): $701.95
Process Data – Data Reduction (De-nist/De-Dupe):
$121.51
Discount 10%: ($122.65)
Sales Tax: $72.85

$1,176.66

GGO - Inv. No. 1110081

Hosting Setup (DB): $1,000.00
Large Collections (10-100 GB) (F, G, U, M and
Mail): $2000.00
Large Collections (10-100 GB): $2,000.00
Standard Matter Management @ 10%: $500.00

$5,500.00

GGO - Inv. No. 111021

DWR Monthly Fee, 258GBs: $2,000.00
DWR Remote Hosting Colo Facility: $500.00
Monthly EULA: $350.00
Large Collections (10-100 GB); 57GBs: $2,000.00
Production Setup: $1,000.00
Native Production Export [bates range]:
$1,000.00
TIFF Conversion and Endorse, Convert 2 GBs:
$1000.00
Media Copy - DVD/CD 2 copies: $50.00
Standard Matter Management 10% PM:
$925.00
2 FedEx Fees: $75.08
Sales Tax at 9.5%: $356.25

$10,706.33

5
6
7
8
9
10

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

25

1

GGO - Inv. No. 1112020

DWR SaaS/GB Hosting (up to 2 TBs): $2,000.00
Secure co-location facility/connectivity: $500.00
DWR monthly reviewer access fees: $1,050.00
Production Setup - Costco-PDS004-000050164:
$1,000.00
TIFF conversion (convert, endorse, Bates stamp,
OCR): $750.00
Production Setup - Costco-PDS006, COS
0053330-53335: $1000.00
TIFF conversion: $750.00
Production media: $400.00
Standard Matter Management @ 10%: $745.00
FedEx fees: $115.00
Sales Tax at 9.5%: $327.75

$8,637.75

GGO - Inv. No. 1201021

Hosting Fees (up to 2 TBs): $2,000.00
Secure co-location facility/connectivity: $500.00
DWR monthly reviewer access fees: $350.00
Sales tax at 9.5%: $223.25

$3,073.25

GGO - Inv. No. 1202023

Secure co-location facility, server, connectivity fees

$500.00

GGO - Inv. No. 1203019

Secure co-location facility, server, connectivity fees

$500.00

GGO - Inv. No. 1204020

Secure co-location facility, server, connectivity fees

$500.00

2
3
4
5
6
7
8
9
10

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

13
14
15

Total

$30,987.24

Combined Opp’n Ex L, ECF No. 181.

16

The bolded costs in the Gallivan and Kiersted invoices total $7,810.08, they relate to specific

17

productions (and the court includes one $925 matter management fee as an approximation of the

18

10% fee imposed), and with 9.5% tax total $8,552.04. The other expenses in the Gallivan invoices

19

generally are hosting expenses that the court does not award. The invoices do not provide enough

20

detail about “large collections” expenses to allow a conclusion that the fees are for exemplification

21

or copying. See Civil L. R. 51(a); Plantronics, 2012 WL 676156 at * 17.

22

As to the Kiersted invoices, the services in the three invoices are related to processing images or

23

native productions, which are recoverable costs. The prices support that conclusion too, as does a

24

comparison to other fees that are not taxable (such as data hosting and co-location fees). Given the

25

presumption for costs, the court finds the record sufficient to tax these costs.

26
27
28

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

26

5. HP

1
2

The following table has the clerk’s taxed costs, the parties’ positions, and the court’s awards.

3

HP Costs By Category and Parties’ Positions (* denotes an undisputed cost)

4

§ 1920 Category

Taxed Costs

HP’s Position

Kelora’s Position

Award

5

Fees of the clerk*

$281.00

$281.00

$281.00

$281.00

6

$5,315.90

$5,315.90

$5,315.90

$5,315.90

7

Fees for printed or
electronically recorded
transcripts*

8

Fees for exemplification and
the costs of making copies

$74,133.40

$74,133.40

$3,913.60

$56,227.50

9

Total

$79,730.30

$79,730.30

$9,510.50

$61,824.40

10

For the Northern District of California

UNITED STATES DISTRICT COURT

11

The next table summarizes HP’s e-discovery costs.

12 HP’s Exemplification Costs By Category
Item
Description
13 Discover Ready - Electronic Discovery for MEDIA001.001 to 001.003
Inv. No. 21107004 Data Processing: $348.00
14
Electronic Discovery: CD Vol. HPKE0001-0006:
Electronic Document Conversion: $242.16
15
Load File Preparation: $264.00
6 CDs: $60.00
16
Electronic File Export - Natives: CDs HPKEN001, 002
Native File Export: $98.00
17
Load File Prep: $176.00
2 CDs: $20.00
18
Hosting - HP Review Database: July 2011
Data Formatting and Loading: $140.00
19
Data Hosting Monthly Charge: $25.90
Per user charge: $500.00
20
21
22
23
24
25
26
27
28

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

27

Total Cost
$1,874.06

For the Northern District of California

UNITED STATES DISTRICT COURT

1 Discover Ready - Electronic Discovery for Media00005-12, 14-16
Inv. No. 21108004
Data Processing: $2,232.00
Electronic Discovery: CD Vol. HPKE0007-0045
2
Electronic Document Conversion: $13,601.00
Load File Prep: $1,716.00
3
39 CDs: $390.00
Electronic File Export - Natives: CD Vol.: HPKEN003-010
4
Native File Export: $392.00
Load File Prep: $704.00
5
8 CDs: $80.00
Hosting - HP Review Database: Aug. 2011
6
Data Formatting and Loading: $3,840.00
Data Hosting Monthly Charge: $735.00
7
Per user charge: $500.00
Productions: CD Vol. HPKE0003-0006, 0009
8
Production Data Set: $236.00
Bates Number & Electronic Conf Status: $3.30
9
OCR Export: $88.50
Load File Prep: $143.00
10
1 CD: $10.00
Production - Natives: CD Vol. HPCN0001
11
Production Data Set Processing: $59.00
Native File Export $49.00
12
Load File Prep: $66.00
Freight Charges: $18.48
13
Discover Ready - Electronic Discovery: Media 000011, 17-30
14 Inv. No. 21109003 Data Processing: $2,912.00
Electronic Discovery: CD Vol. HPKE0046-0080
Electronic Document Conversion: $ 4,543.32
15
Load File Prep: $1,540.00
35 CDs: $350.00
16
Electronic File Export - Natives: CD Vol. HKEN011-020
Native file export: $490.00
17
Load File Prep: $880.00
10 CDs: $100.00
18
Hosting - HP Review Database: Sept. 2011
Data formatting and Loading: $2,100.00
19
Data Hosting: $1,109.50
Per User Charge: $500.00
20
Productions: CD Vol. HPKE0041, 0043, 0057-0058
Production Data Set: $236.00
21
Bates number: $37.82
OCR export: $118.00
22
Load File Prep: $187.00
CD: $10.00
23
Production: Natives (CD Vol. HPCPN0002)
Production data set processing: $59.00
24
Native File Export: $49.00
Load File Prep: $66.00
25
Freight charges: $18.56
26
27
28

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

28

$24,863.28

$15,306.20

For the Northern District of California

UNITED STATES DISTRICT COURT

1 Discover Ready - Electronic Discovery: Media 000031-000032
Inv. No. 21110003 Data processing: $328.00
Electronic Discovery: HPKE0081-0085
2
Electronic document conversion: $380.52
Load File Prep: $220.00
3
5 CDs: $50.00
Electronic File Export - Natives: CD Vol.: HPKEN021-022)
4
Native File Export: $98.00
Load File Prep: $176.00
5
2 CDs: $20.00
Hosting - HP Review Database: Sept. 2011
6
Data Formatting and Loading: $900.00
Data Hosting: $1,267.00
7
Per user charge: $500.00
Productions: CD Vol.: HPCP0003-0006
8
Production Data Set $944.00
Bates Numbering: $505.98
9
OCR Export: $472.00
Load File Prep: $748.00
10
4 CDs: $40.00
2 DVDs: $20.00
11
Production - Natives: CD Vol. HPCPN0003-0004
Production Data Set Processing: $118.00
12
Native File Export: $98.00
2 DVDs: $20.00
13
Load File Prep: $132.00
Freight Charges: $38.08
14
Discover Ready - Electronic File Export - Natives: CD Vol. HPKN0001
Native File Export: $49.00
15 Inv. No. 21111003
Load File Prep: $88.00
CD: $10.00
16
Hosting - HP Review Database: Nov. 2011
Data Formatting and Loading: $920.00
17
Data Hosting Monthly Charge: $1,428.00
Per user charge: $500.00
18
Productions: CD Vol. HPCP0007-HPCP0015
Production data set: $2,124.00
19
Bates numbering: $1,082.82
OCR Export: $295.00
20
Load File Prep: $539.00
DVD: $20.00
21
OCR: $0.08
Production - Natives: CD Vol. HPCPN0005
22
Production Data Set Processing: $59.00
Native file Export: $49.00
23
DVD: $10.00
Load File Prep: $66.00
24
Freight Charges: $36.80
25 Discover Ready - Hosting - HP Review Data Base: Dec. 2011
Inv. No. 21112004 Data Hosting Monthly Charge: $1,428.00
Per user charge: $500.00
26
27
28

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

29

$7,075.58

$7,276.70

$1,928.00

For the Northern District of California

UNITED STATES DISTRICT COURT

1 Discover Ready - Electronic File Export - Native: CD Vol. HPKN0002
Inv. No. 21200003
Native File Export: $49.00
Load File Prep: $88.00
2
CD: $10.00
Hosting - HP Review Database: Jan 2012
3
Data Formatting and Loading: $920.00
Data Hosting: $1,589.00
4
Per user charge: $500.00
Freight charges: $19.23
5
Discover Ready - Electronic Discovery: Media000033-000036
Data Processing: $96.00
6 Inv. No. 21202002
Electronic Discovery: CD Vol. HPKE0086-0090
Electronic Document Conversion: $200.36
7
Load File Prep: $220.00
5 CDs: $50.00
8
Electronic File Export - Natives: CD Vol. HPKEN023-024
Native File Export: $98.00
9
Load File Prep: $176.00
2 CDs: $20.00
10
Hosting - HP Review Database: Feb. 2012
Data Formatting and Loading: $140.00
11
Data Hosting: $1,613.50
Per user charge: $500.00
12
Productions: CD Vol. HPCP0003, 0016-0019
Production Data Set: $944.00
13
Bates numbering: $109.24
OCR: $0.04
14
OCR Export: $265.50
Load File Prep: $473.00
15
4 CDs: $40.00
1 DVD: $10.00
16
Production - Natives: CD Vol. HPCPN0003, 0006-0007
Production Data Set Processing: $118.00
17
Native File Export: $98.00
Load File Prep: $176.00
18
Freight Charges: $37.62
19
20
21
22
23
24
25
26
27
28

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

30

$3,175.23

$5,385.26

For the Northern District of California

UNITED STATES DISTRICT COURT

1 Discover Ready - Electronic Discovery: Media 000037-000038
Inv. No. 21203001
Data processing: $156.00
Electronic Discovery: CD Vol. HPKE0091-0093
2
Electronic Doc Conversion: $168.84
Load File Prep: $132.00
3
3 CDs: $30.00
Electronic File Export - Natives: CD Vol. HPKN0003-0004
4
Native File Export: $98.00
Load File Prep: $176.00
5
2 CDs: $20.00
Electronic File Export - Natives: CD Vol. HPKEN025-026
6
Native File Export: $98.00
Load File Prep: $176.00
7
2 CDs: $20.00
Data Hosting - HP Review Database: Mar. 2012
8
Formatting and Loading: $180.00
Data Hosting: $1,645.00
9
Per user charge: $500.00
Productions: CD Vol. HPCP0020-0022
10
Production data set: $708.00
Bates numbering: $87.32
11
OCR Export: $177.00
Load File Prep: $297.00
12
3 CDs: $30.00
Production - Natives: CD Vol. HPCPN0008-0009
13
Production Data Set Processing: $118.00
Native File Export: $98.00
14
Load File Prep: $132.00
Freight charges: $56.93
15
Discover Ready - Hosting - HP Review Database: Apr. 2012
16 Inv. No. 21204003 Data Hosting: $1,645.00
Per user charge: $500.00
TOTAL
17
18

$5,104.09

$2,145.00
$74,133.40

Combined Opp’n Ex. M, ECF No. 181.

19

The court awards the bolded costs, which total $56,227.50. All costs are tied to specific

20

productions and are analogous to making a copy. Native file export also is compensable, and the

21

parties’ ESI agreement contemplated native file production. See supra page 13. As discussed in

22

the previous sections, the court does not tax hosting fees or user charges. As part of these taxed

23

costs, the court includes production data set processing, load file fees, and data loading (italicized

24

and bolded) tied to specific productions. The parties contemplated production with load files in

25

their ESI agreement, and one cannot read the data without the load files.

26
27

6. Office Depot
The following table has the clerk’s taxed costs, the parties’ positions, and the court’s awards.

28

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

31

1

Office Depot Costs By Category and Parties’ Positions (* denotes an undisputed cost)

2

Category

Taxed Costs

Office Depot’s
Position

Kelora’s
Position

Award

Fees of the clerk*

$281.00

$281.00

$281.00

$281.00

Fees for printed or
electronically recorded
transcripts*

$3,914.67

$3,914.67

$3,914.67

$3,914.67

Fees for exemplification and the
costs of making copies.

$24,842.08

$24,842.08

$1,840.38

$16,906.81

Total

$29,037.75

$29,037.75

$6,036.05

$21,102.48

3
4
5
6
7
8
9
10

Office Depot’s Exemplification Costs By Category
Item

Description

Total Cost

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

The next table summarizes Office Depot’s e-discovery costs.

CSI

Hard Drive

$324.75

13

Discovery Ready
Inv. No. 21108071

Electronic Document Conversion: Media 0001, 00030006
Data Processing: $24.00
Electronic Document Conversion: CD Vol. ODKT0001
Convert Tagged Documents to TIFF images: $6.84
Hosting - Office Depot Review Database: Aug. 2011
One-time Data Loading: $20.00
Monthly Hosting: $3.50
Productions: CD Vol. ODIP0001
Prepare Production: conflicts checking, bates
stamping; confidentiality designations, redactions:
$6.84
Data Formatting with load files: $75.00
Master CD: $25.00
Production Natives: CD Vol. ODIPN0001
Produce selected native files: $0.10
Data formatting: $75.00
Load CDs to hard drive: $15.00

$251.28

Discovery Ready
Inv. No. 21109070

Electronic Doc. Conversion: Media 0008-0010, 2001-02
Data Processing: $5,724.00
Electronic Doc. Conversion: CD Vol. ODKT0002-0007
Convert tagged documents to TIFF images: $9.32
Hosting - Office Depot Review Database: Sept. 2011
One time Data Loading: $4,060.00
Monthly Hosting: $780.50

$10,573.82

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

32

[$9,793.32]

1
2

Discovery Ready
Inv. No. 21110070

3
4
5
6
7
8
9
10

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

13
14
15
16
17
18
19

Discovery Ready
Inv. No. 21111063

Electronic Document Conversion: Media 00012
Data Processing $4.00
Electronic Document Conversion: CD Vol. ODKT00080009
Convert tagged documents to TIFF images: $972.56
Hosting - Office Depot Review Database: Oct. 2011
One-time Data Loading: $900.00
Monthly Hosting: $938.00
Productions: CD Vol. ODIP0002-0008
Prepare Production: conflicts checking, bates
stamping; confidentiality designations, redactions:
$986.96
Data formatting for databases: format data with load
files: $525.00
3 master CDs: $75.00
Load CDs to hard drive: $105.00
Production Natives: CD Vol. ODIPN0002-0004
Produce selected native files: $119.30
Data formatting for requested database, format data
with load files: $225.00
Load CDs to hard drive: $45.00
Freight charges: $18.40

$4,896.22

Hosting - Office Deport Review Database: Nov. 2011
Monthly Hosting: $938.00
Productions: CD Vol. ODIP009
Prepare Production: conflicts checking, bates
stamping; confidentiality designations, redactions:
$0.04
Data Formatting with load files: $75.00
Master CD: $25.00
Production Natives: CD Vol. ODIPN0005
Produce selected native files: $0.10
Data formatting for database: format data with load
files: $75.00
Load CDs to hard drive: $15.00
Freight charges: $17.03

$1,145.17

20
21
22
23
24
25
26
27
28

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

33

[$3,958.20]

[$207.17]

1
2

Discovery Ready
Inv. No. 21112070

3
4
5
6
7
8
9
10

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

Discovery Ready
Inv. No. 21201065

13
14
15
16
17
18

Discovery Ready
Inv. No. 21202078

19
20
21
22
23
24
25
26
27
28

Discovery Ready
Inv. No. 21203063

Electronic Document Conversion: CD Vol. ODKT00400053
Convert tagged docs to TIFF images: $491.80
Hosting - Office Deport Review Database: Dec. 2011
One-time Data Loading: $400.00
Monthly Hosting: $992.95
Productions: CD Vol. ODIP0010-11
Prepare production: conflicts checking, bates
stamping; confidentiality designations, redactions:
$489.36
Data formatting for databases: format data with load
files: $150.00
Master CDs: $25.00
Load CDs to hard drive: $30.00
Production Natives: CD Vol. ODIPN0006
Produce selected native files: $0.50
Data formatting for databases: format data with load
files: $75.00
Load CDs to hard drive: $15.00
Freight charges: $18.40

$2,688.01

Hosting - Office Depot Review Database: Jan. 2012
One-time Data Loading: $20.00
Monthly Hosting Charge: $996.45
Productions: CD Vol. ODIP0012-13
Prepare production: conflicts checking, bates
stamping, confidentiality designations, redactions:
$3.08
Data formatting for databases: format data with load
files: $150.00
Master CDs: $25.00
Load CDs to hard drive: $30.00
Freight charges: $19.23

$1,243.76

Hosting - Office Depot Review Database: Feb. 2012
Monthly Hosting Charges: $996.45
Monthly User Charge: $100.00
Productions: CD Vol. ODIP0014-15
Prepare Production: conflicts checking, bates
stamping, confidentiality designations, redactions:
$0.60
Data formatting for databases, format data with load
files: $150.00
Master CDs: $50.00
Production Natives: CD Vol. ODIPN0007-08
Produce selected native files: $1.50
Data Formatting for databases, format data with load
files: $150.00
Master CDs: $25.00
Load CDs to hard drive: $15.00
Freight charges: $37.62

$1,526.17

Hosting - Office Deport Review Database: Mar. 2012
Monthly Hosting Charge: $996.45
Monthly User Charge: $100.00

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

34

[$1,695.06]

[$227.31]

[$429.72]

$1,096.45

1
2
3

Discovery Ready
Inv. No. 21204071

Hosting - Office Depot Review Database: Apr. 2012
Monthly hosting charges: $996.45
Monthly User Charge: $100.00

Total

$1,096.45

$24,842.08
[$16,906.81]

4
5

Combined Opp’n Ex N, ECF No. 181. The court awards the bolded costs totaling $16,906.81 as

6

exemplification and copying costs. The rest are hosting fees that are not taxable.

7
8
9
10

7. Target
The following table has the clerk’s taxed costs, the parties’ positions, and the court’s awards.
Target Costs By Category and Parties’ Positions (* denotes an undisputed cost)
Category

Taxed
Costs

Target’s
Position

Kelora’s
Position

Award

Fees of the clerk*

$281.00

$281.00

$281.00

$281.00

13

Fees for printed or electronically
recorded transcripts*

$7,488.30

$7,488.30

$7,488.30

$7,488.3
0

14

Fees for exemplification and the
costs of making copies

$684.86

$684.86

$0.00

$684.86

Total

$8,454.16

$8,454.16

$7,769.30

$8,454.1
6

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

15
16
17

The next table summarizes Target’s e-discovery costs.

18

Target’s Exemplification Costs By Category

19

Item

Description

Total Cost

20

Kiersted Inv. No. FJ2551108

Process Data - Data Reduction (De-nist, dedupe): $1.31
Process Data - Output (Images): $14.60
5% discount $0.80
Sales Tax: $1.00

$16.11

Kiersted Inv. No. FJ2551112

Process Data - Output (Images - TIFF):
$218.50
10% discount: $21.85
Sales Tax: $15.86

$256.21

Kiersted Inv. No. FJ2551201

Process Data - Output (Images): $375.30
Sales Tax: $24.77

$400.07

Kiersted Inv. No. FJ2551202

Process Data - Output (Images): $6.95
Process Data - Output (TIFF images): $4.75
Sales Tax: $0.77

$12.47

21
22
23
24
25
26
27
28
Total

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

$684.86

35

1
2

Combined Opp’n Ex O, ECF No. 181.
The declaration establishes that the invoices all are for reproducing discovery. The invoices on

3

their face show that they involve output in the form of TIFF images, which is a production format

4

contemplated by the parties in their ESI agreement. See supra page 13. Kelora argues that this

5

detail is not sufficient. As the court held with the Kiersted invoices for Costco, the costs are for

6

copying (not processing), and given the presumption in favor of costs and counsel’s declaration, the

7

documentation is sufficient.

8
9

CONCLUSION
The court taxes the costs in the chart in the introduction.

In Case No. 11-1398 CW (LB), this disposes of ECF No. 155.

12
For the Northern District of California

In Case No. 10-4947 CW (LB), this disposes of ECF Nos. 173-75.

11
UNITED STATES DISTRICT COURT

10

In Case No. 11-1548 CW (LB), this disposes of ECF Nos. 515-521.

13

IT IS SO ORDERED.

14
15

Dated: April 5, 2013

_______________________________
LAUREL BEELER
United States Magistrate Judge

16
17
18
19
20
21
22
23
24
25
26
27
28

ORDER TAXING COSTS
C 10-4947 CW (LB), C 11-1398 CW (LB), C 11-1548 CW (LB)

36