LG Electronics U.S.A., Inc. v. Whirlpool Corporation

Filing 706

MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 10/20/2011:Mailed notice(kef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LG ELECTRONICS U.S.A., Inc.,

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Plaintiff,
v.
WHIRLPOOL CORPORATION,
Defendant.

No. 08 C 0242

MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
Plaintiff LG Electronics U.S.A., Inc., (“LG”) brought this lawsuit against Defendant
Whirlpool Corporation (“Whirlpool”) in connection with Whirlpool’s advertising of its
steam dryers. Before the Court are both LG’s and Whirlpool’s Bills of Costs pursuant to Federal
Rule of Civil Procedure 54(d)(1). Because LG is not a prevailing party in this lawsuit under
Rule 54(d)(1), the Court declines to award it any costs or fees. On the other hand, the Court, in
its discretion, awards Whirlpool – as the prevailing party to this lawsuit – $411,029.12 in costs
and fees under Rule 54(d)(1).
BACKGROUND
In January 2008, LG sued Whirlpool for false advertising in violation of Section 43(a) of
the Lanham Act, 15 U.S.C. § 1125(a), among other claims. The litigation was complex and
hard-fought. After a three-week trial that ended on October 20, 2010, a jury returned a verdict
largely in favor of Whirlpool and against LG. Specifically, the jury found in favor of Whirlpool
on LG’s claim of false advertising under the Lanham Act. The jury also found in favor of
Whirlpool on LG’s claim under the Illinois Consumer Fraud and Deceptive Business Practices

Act. The jury, however, did find in favor of LG on its claim under the Illinois Uniform
Deceptive Trade Practices Act, which provides only for injunctive relief, but the Court later
denied LG’s motion for a permanent, nationwide injunction on May 9, 2011, and granted
Whirlpool’s motion for judgment as a matter of law on this claim.
LEGAL STANDARD
Rule 54(d)(1) provides that “costs other than attorney’s fees shall be allowed as of course
to the prevailing party unless the court otherwise directs.” See Fed.R.Civ.P. 54(d)(1). The list of
recoverable costs pursuant to 28 U.S.C. § 1920, includes (1) fees of the clerk and marshal, (2)
fees for transcripts, (3) witness fees and expenses, (4) fees for copies of papers necessarily
obtained for use in the case, (5) docket fees under 28 U.S.C. § 1923, and (6) compensation for
court-appointed experts and interpreters. See U.S. Neurosurgical, Inc. v. City of Chicago, 572
F.3d 325, 333 (7th Cir. 2009); Republic Tobacco Co. v. North Atl. Trading Co., Inc., 481 F.3d
442, 447 (7th Cir. 2007). Rule 54(d)(1) “provides a presumption that the losing party will pay
costs but grants the court discretion to direct otherwise.” Rivera v. City of Chicago, 469 F.3d
631, 634 (7th Cir. 2006); see also U.S. Neurosurgical, 572 F.3d at 333. Taxing costs against the
non-prevailing party requires two inquiries – whether the cost is recoverable and whether the
amount assessed is reasonable. See Little v. Mitsubishi Motors N. Am., Inc., 514 F.3d 699, 702
(7th Cir. 2008) (per curiam). District courts have considerable discretion in determining whether
a particular cost is reasonable and necessary. See U.S. Neurosurgical, 572 F.3d at 333.
ANALYSIS
I.

Prevailing Party
Although the jury returned a verdict largely in favor of Whirlpool and the Court denied

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LG’s permanent injunction motion and vacated the jury’s verdict on the only count in which it
found in favor of LG, LG argues that it is a prevailing party to this lawsuit because
Whirlpool voluntarily dismissed its counterclaims. “A party prevails for purposes of Rule 54(d)
when a final judgment awards it substantial relief.” Smart v. Local 702 Int’l Bhd. of Elec.
Workers, 573 F.3d 523, 525 (7th Cir. 2009); see also Testa v. Village of Mundelein, Ill., 89 F.3d
443, 447 (7th Cir. 1996) (“the ‘prevailing party’ is the party who prevails as to the substantial
part of the litigation”). The fact that Whirlpool voluntarily dismissed its counterclaims does not
support the conclusion that LG prevailed as to a substantial part of this litigation, especially
because the dismissal of the counterclaims is negligible compared to the jury verdict that was in
Whirlpool’s favor on the central issue in this lawsuit, namely, whether Whirlpool’s dryers use
steam. See Northbrook Excess & Surplus Ins. Co. v. Procter & Gamble Co., 924 F.2d 633, 642
(7th Cir. 1991); see also Republic Tobacco Co., 481 F.3d at 446 (“a determination of who is the
prevailing party for purposes of awarding costs should not depend on the position of the parties
at each stage of the litigation but should be made when the controversy is finally decided.”)
(citation omitted). Therefore, the Court denies LG’s request for costs because LG was not a
prevailing party in this lawsuit under the dictates of Rule 54(d)(1) and Seventh Circuit authority.
Instead, Whirlpool was the prevailing party, and thus the Court turns to Whirlpool’s Bill of
Costs.
II.

Fees for Summons and Subpoena – 28 U.S.C. § 1920(1)
First, Whirlpool seeks costs associated with service fees pursuant to 28 U.S.C. § 1920(1).

Service fees may not exceed amounts charged by the United States Marshal Service, which is
$55.00 per hour, as well as any travel costs and out-of-pocket expenses. See Collins v. Gorman,

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96 F.3d 1057, 1060 (7th Cir. 1996); see also 28 C.F.R. § 0.114(a)(3) (establishing fees for
service of summons). The current hourly rate went into effect on December 19, 2008. See 28
C.F.R. § 0.114(a)(3). Prior to that date, the service fee was $45.00. See, e.g. Trading Tech. Int’l,
Inc. v. eSpeed, Inc., 750 F.Supp.2d 962, 984 (N.D. Ill. 2010).
Although Whirlpool used a private process server that charged more than $55.00 per
hour, Whirlpool has reduced its request under Section 1920(1) to $55.00 per service. Based on
the record, however, 15 of Whirlpool’s 19 witnesses were served prior to December 19, 2008.
Therefore, the Court awards Whirlpool $675.00 for these 15 witnesses and $220.00 for the four
witnesses served after December 19, 2008 for a total of $895.00, which are costs that are
recoverable and reasonable. See Little, 514 F.3d at 702.
III.

Court Reporting Fees – 28 U.S.C. § 1920(2)
Whirlpool requests costs under 28 U.S.C. § 1920(2) for court reporting fees and costs

related to deposition transcripts. Courts award deposition charges if the deposition appears
reasonably necessary in light of the facts known at the time of the deposition. See Little, 514
F.3d at 702. Under Northern District of Illinois Local Rule 54.1(b), the costs of a transcript shall
not exceed the regular copy rate established by the United States Judicial Conference. See
N.D.Ill.L.R. 54.1(b). Judicial Conference rates for depositions conducted after November 1,
2007 are $3.65 per page for ordinary transcripts, $4.25 per page for fourteen day transcripts,
$4.85 per page for seven day transcripts, $6.05 per page for daily transcripts, and $7.25 per page
for hourly transcripts. See www.ilnd.uscourts.gov/CLERKS_OFFICE/CrtReporter/trnscrpt.htm.
In addition, attendance fees are recoverable under Section 1920(2). See Extra Equipamentos E
Exportacao Ltda. v. Case Corp., 541 F.3d 719, 727 (7th Cir. 2008); Little, 514 F.3d at 701-02.

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A.

Stenographic Transcripts

Whirlpool requests a total of $35,771.35 in costs associated with stenographic transcripts.
In response, LG objects to Whirlpool’s request for costs associated with exhibits and word
indexes. The Court, however, rejects LG’s argument because courts in this district have
concluded that these costs are recoverable because both indexes and exhibits are essential to
understanding the content of a deposition, especially in a complex and heavily litigated case such
as this one. See, e.g., Harkins v. Riverboat Servs., Inc., 286 F.Supp.2d 976, 980 (N.D. Ill. 2003);
see also AMC v. Intercontinental, No. 06 C 0063, 2010 WL 4735760, at *1 (N.D. Ill. Nov. 15,
2010). Meanwhile, Whirlpool agrees with LG’s objection to the costs for Jim Birtz’s deposition
and withdraws its request for $297.65 related to this deposition. Despite LG’s argument to the
contrary, however, the deposition of Kwame Green was reasonably necessary in light of the facts
known at the time of the deposition, especially because Whirlpool used Green’s deposition at
trial. See Little, 514 F.3d at 702. In addition, the Court will not tax LG the cost of the court
reporter parking fees for Robert Reitter’s and Timothy Kavanaugh’s depositions and deducts the
$72.60 from Whirlpool’s request. As such, the Court awards Whirlpool $35,401.10 for
stenographic deposition transcripts under Section 1920(2).
B.

Videotaped Transcripts

Next, Whirlpool seeks a total of $45,806.20 related to videotaped depositions. Under
Section 1920(2), costs for both video-recorded depositions and stenographic transcription may
be taxed to the losing party if the video and transcript are necessarily obtained for use in the
case. See Little, 514 F.3d at 702; see, e.g., National Diamond Syndicate, Inc. v. Flanders
Diamond USA, Inc., No. 00 C 6402, 2004 WL 1557765, at *2 (N.D. Ill. July 8, 2004). Costs

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associated with digitalization and synchronization of videotaped depositions may also be taxed.
See, e.g., Specht v. Google Inc., No. 09 C 2572, 2011 WL 2565666, at *2 (N.D. Ill. June 27,
2011); Hynix Semiconductor Inc. v. Rambus Inc., 697 F.Supp.2d 1139, 1151 (N.D. Cal. 2010).
Whirlpool played portions of the videotaped depositions of Green, Timothy Kavanaugh,
Janine Martella, and John Weinstock at trial because these witnesses were unavailable and
outside of the Court’s subpoena power. Therefore, these video-recorded depositions are
reasonably necessary and the costs associated with them are recoverable. See Fairley v.
Andrews, No. 03 C 5207, 2008 WL 961592, at *11 (N.D. Ill. Apr. 8, 2008). Similarly, because
Richard Donner was a non-party residing outside of the Court’s subpoena power, the costs
associated with his video-recorded deposition are recoverable. See id. The videotaped
deposition of Jerry Wind was used at his Daubert hearing, and thus is recoverable. Likewise, the
videotaped depositions of LG’s other experts, Robert Reitter, Mohan Rao, and Anthony Jacobi,
are also recoverable and were reasonably necessary because of the possibility of using the
videotaped depositions at their Daubert hearings or trial. See Vito & Nick’s, Inc. v. Barraco, No.
05 C 2764, 2008 WL 4594347, at *3 (N.D. Ill. Oct. 10, 2008). In addition, the costs for the
videotape depositions of Chul Jin Choi, Tae Jin Lee, Sang Hoon Bae are recoverable and
reasonably necessary because it appears that these individuals live in South Korea, and LG put
these witnesses on its “may call” and “will call” lists for trial. See Engate, Inc. v. Esquire
Deposition Servs. LLC, No. 01 C 6204, 2006 WL 695650, at *2 (N.D. Ill. 2006).
Whirlpool also asserts that it was necessary and reasonable to obtain copies of videotaped
depositions of the LG’s deponents because LG maintained that it would call these witnesses to
testify at trial via their videotaped depositions. Indeed, the following individuals were listed on

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LG’s final “will call” witness list indicating that they would be called either live or by video
deposition: David Palmer, Kirk Dunsbergen, Pam Rogers, Carolyn Voss, Don Tomasi, Don
Rydberg, Robert Meyer, Coleman McIntyre, Matthew Doll, Steve Ficke, Judith Levi, Don
Rydberg, Scott Brown, Scot Lau, Audrey Reed-Granger, Scott Slabbekorn, Erica Vallecorsa, and
Charles Hall. (R. 456, Pretrial Order, Tab 3.) Further, LG listed the following “may call”
witnesses by video deposition: Angela Seger, Michael Tilly, Mary Kennedy, Aida Tores, Laurie
Lesauskis, Ann Dahmer, Betsy Poczkalski, and Jimmy Chin. (Id.)
As to the remaining videotaped depositions that LG challenges, Whirlpool does not
provide the Court with specific information about the depositions or their use. Without a
sufficient explanation of these costs, the Court cannot award them under Rule 54(d)(1). See
Harkins, 286 F.Supp.2d at 980 (“When the costs can not be obtained reasonably by reference to
supporting documentation, the costs as requested can not be awarded.”). Therefore, the Court
deducts a total of $1,896.00 for the videotaped depositions of Ravi Dhar, Subbiah Malladi,
Stephen Nowlis, and Raymond Sims. (See R. 700, LG Mem. in Opp., Ex. C; R. 695, Whirlpool
Bill of Costs, Ex. C.)
Last, Whirlpool maintains that it overlooked removing the $15.00 shipping and handling
charges on four deposition invoices, and thus the Court deducts $60.00 from the videotaped
deposition costs. The Court therefore awards Whirlpool a total of $43,850.20 for videotaped
deposition costs.
C.

Trial and Hearing Transcripts

Whirlpool also seeks $15,299.98 for trial transcripts and $3,544.90 for the Daubert, final
pretrial, and post-trial injunction hearing transcripts for a total of $18,844.88. LG does not

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object to these costs and they are recoverable and reasonable. See Little, 514 F.3d at 702. The
Court therefore awards a total of $98,096.18 under Section 1920(2).
IV.

Witness Fees – 28 U.S.C. § 1920(3).
A.

Lay Witness Fees

Whirlpool further requests lay witness fees under Section 1920(3). The costs recoverable
for lay witnesses under Section 1920(3) include a witness’ attendance at court hearings or
depositions, which is $40 per day. See 28 U.S.C. § 1821(a),(b); Crawford Fitting Co. v. J.T.
Gibbons, Inc., 482 U.S. 437, 441-42, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987). LG does not
object to this fee request that totals $1,280.00.
B.

Travel Fees

Whirlpool also seeks travel fees in the amount of $20,004.84 under Section 1920(3)
pursuant to 28 U.S.C. § 1821(c)(1). LG objects to the airfare costs for the business class flights
for Ravi Dhar from New York to Chicago and Subbaiah Malladi from San Francisco to Chicago
because these tickets were not the “most economical rate reasonably available.” See 28 U.S.C. §
1821(c)(1). Whirlpool agrees to deduct half of the costs of these flights in the amount of
$3,035.80. Therefore, the Court awards a total of $16,969.04 for travel costs set forth in
Whirlpool’s Exhibit E. (R. 695, Whirlpool Ex. E, Part 1.)
C.

Expert Fees

Furthermore, Whirlpool requests $121,240.20 pursuant to Federal Rule of Civil
Procedure 26(b)(4)(E), which “gives the court the discretion to order the seeking party pay the
responding party a fair portion of the fees and expenses incurred in obtaining information from
the expert.” Rhee v. Witco Chem. Corp., 126 F.R.D. 45, 48 (N.D. Ill. 1989); see also Fairley,

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2008 WL 961592, at *4. Courts in this district have concluded that costs associated with the
time spent preparing for a deposition are recoverable, as well as the time attending the
deposition. See Waters v. City of Chicago, 526 F.Supp.2d 899, 900-01 (N.D. Ill. 2007); Profile
Prod. v. Soil Mgmt. Tech., Inc., 155 F.Supp.2d 880, 886 (N.D. Ill. 2001).
LG does not object to Whirlpool’s inclusion of expert fees pursuant to Rule 26(b)(4)(E)
in Whirlpool’s Bill of Costs. Instead, LG maintains that the fees Whirlpool requests are
unreasonable in several respects. LG first asserts that certain expert deponents spent an
unreasonable amount of time preparing for their depositions, including experts Dhar, Levi,
Malladi, Nowlis, and Sims. In this district, courts look to the preparation time in relation to the
deposition time to determine whether the preparation time was reasonable. See Chicago United
Indus., Ltd. v. City of Chicago, No. 05 C 5011, 2011 WL 4383007, at * 2 (N.D. Ill. Sept. 20,
2011) (collecting cases). These courts have reasonably concluded that a ratio of 3 to 1
preparation to deposition time is reasonable in complex cases such as this one. See id.; Nilssen v.
Osram Sylvania, Inc., No. 01 C 3585, 2007 WL 257711, at *5 (N.D. Ill. Jan. 23, 2007).
Because the preparation time for the Dhar, Levi, Malladi, Nowlis, and Sims expert
depositions all exceeded the 3 to 1 ratio, the Court deducts the preparation time to reflect a 3 to 1
ratio. Accordingly, the Court deducts $12,314.00 from Dhar’s expert deposition costs in which
he spent 36.75 hours in preparation for a deposition that lasted 5.75 hours; $8,790.00 from
Levi’s expert deposition costs in which she spent 30.75 hours preparing for a 6.25 hour
deposition; $5,423.15 from Malladi’s expert deposition costs where his deposition took 6.75
hours and he spent 28.50 hours preparing for it; $6,258.00 from Nowlis’ deposition costs in
which he spent 30.50 hours to prepare for a 7 hour deposition; and $14,018.80 for the expert

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deposition costs for Sims’ deposition in which he spent 38.50 hours preparing for a 6.5 hours
deposition. (See R. 695, Whirlpool, Ex. K.) These deductions total $46,803.95.
Next, LG maintains that certain other costs associated with the expert depositions are not
recoverable, including time the experts spent reviewing the transcripts of their own deposition
testimony. Courts in this district, however, have awarded such costs, and thus the Court will not
deduct costs in this respect. See, e.g., Fox v. Will County, No. 04 C 7309, 2009 WL 723385, at
*4 (N.D. Ill. Mar. 11, 2009). This is especially true where, as here, the experts had to review
their transcripts in preparation for the Daubert hearings and trial. Further, the time the
deponents spent to and from the deposition location amounts to travel time, and is thus
recoverable. See Fairley, 2008 WL 961592 at *5.
The Court agrees with LG, however, that the undocumented travel costs associated with
experts Malladi and Sims are not recoverable. See Harkins, 286 F.Supp.2d at 980. Indeed,
Whirlpool acknowledges this lack of substantiation and only seeks $100.00 for Malladi’s taxi
fare, which is documented. The Court thereby deducts $1,526.40 and $1,320.80 for the travel
costs of Malladi and Sims, respectively. (R. 695, Ex. K.) Whirlpool also voluntarily deducts the
requested per diem witness fees and statutory subsistence costs. The total reduction of travel and
subsistence costs is thus $3,843.20.
LG further argues that the Court should not award any costs associated with Levi’s expert
deposition because Whirlpool did not list Levi as an expert in its Rule 26 disclosures. Whirlpool
explains that it did not list Levi – an Associate Professor of Linguistics at Northwestern
University – as an expert because Whirlpool did not intend to call her at trial. Nevertheless, LG
took Levi’s deposition and put Levi on its “will call” witness list. In the meantime, LG does not

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provide the Court with any legal authority overcoming the presumption that these costs are
recoverable. See Rivera, 469 F.3d at 634. Moreover, Rule 26(b)(4)(E) was designed to “meet
the objection that it is unfair to permit one side to obtain without cost the benefit of an expert’s
work for which the other side had paid, often a substantial sum.” Fairley, 2008 WL 961592, at
*4. Therefore, costs associated with Levi’s deposition are recoverable under the circumstances.
See 8 Wright, Miller, and Marcus, Federal Practice & Procedure § 2034 (discovering party has
obligation to pay expert costs if it takes deposition); see also Federal Practice & Procedure,
October 2011 Supp. § 2034 (“Rule 26(b)(4)(E)(i) places a financial burden of deposing a
testifying expert on the party that conducts the deposition”).
Last, LG contends that it would be manifestly unjust to require it to bear the entire costs
of preparing Whirlpool’s expert witnesses for their depositions because, in essence, LG will be
required to pay Whirlpool for preparing its own expert witnesses for trial. The basic proposition
under Rule 26(b)(4)(e), however, “is relatively straightforward – a party that takes advantage of
the opportunity afforded by Rule 26(b) [] to prepare a more forceful cross–examination should
pay the expert’s charges for submitting to this examination.” 8 Wright, Miller, and Marcus,
Federal Practice & Procedure § 2034. Whether this expert examination would also help the nondiscovering party is not contemplated by this Rule and LG has failed to cite supporting legal
authority that any such benefit would amount to a manifest injustice under Rule 26(b)(4)(E).
Therefore, the Court awards Whirlpool a total of $70,593.05 in expert costs.
V.

Exemplification and Photocopying Costs – 28 U.S.C. § 1920(4)
Whirlpool also seeks a total of $276,825.13 in photocopying and exemplification costs

pursuant to 28 U.S.C. § 1920(4), which allows the Court to tax as costs “fees for exemplification

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and the costs of making copies of any materials where the copies are necessarily obtained for use
in the case.” See 28 U.S.C. 1920(4); see also Tchemkou v. Mukasey, 517 F.3d 506, 513 (7th Cir.
2008).1 Courts interpret Section 1920(4) to mean that photocopying charges for discovery and
court copies are recoverable, but charges for copies made for attorney convenience are not. See
Kulumani v. Blue Cross Blue Shield Ass’n, 224 F.3d 681, 685 (7th Cir. 2000); McIlveen v. Stone
Container Corp., 910 F.2d 1581, 1584 (7th Cir. 1990). Under Section 1920(4), the prevailing
party is “not required to submit a bill of costs containing a description so detailed as to make it
impossible economically to recover photocopying costs.” Northbrook Excess, 924 F.2d at 643.
Instead, the prevailing party need only provide the best breakdown obtainable from the records.
See id.
A.

Exemplification Costs

First, Whirlpool requests $109,833.75 for exemplification work used to create and
present evidence to the Court and jury at the hearings and trial, along with its technological
consultants’ court attendance costs. Whirlpool explains that the creation and exemplification of
exhibits was necessary to illustrate the complex engineering and technical concepts involved in
this lawsuit. In support of this request, Whirlpool attaches a chart of these costs and detailed
invoices explaining the relevant charges. (See 695, Whirlpool Ex. F.) Contrary to LG’s
arguments, the chart and invoices give the Court readily identifiable information to determine
whether these costs are reasonable, recoverable, and if the exemplification costs were

1

In 2008, Congress amended the text of 28 U.S.C. § 1920(4) from: “[a] judge or clerk of
any court of the United States may tax as costs the following: ... fees for exemplifications and
copies of papers” to “fees for exemplification and the costs of making copies of any materials,”
based on the growing use of electronic discovery in federal courts. See Jardin v. DATAllegro,
Inc., No. 08-CV-1462-IEG, 2011 WL 4835742, at *5 (S.D.Cal. Oct. 12, 2011).
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“necessarily obtained for use in the case.” See Tchemkou, 517 F.3d at 513.
After reviewing these documents and presiding over the trial where Whirlpool introduced
the exhibits, the Court concludes that this is not the case where a party’s multi-media
presentation is merely “glitz,” as LG argues. See Cefalu v. Village of Elk Grove, 211 F.3d 416,
428 (7th Cir. 2000) (district court uniquely suited to make Section 1920(4) exemplification
assessment). Instead, LG brought this lawsuit alleging false advertising of Whirlpool’s steambased dryers. To explain how the dryers worked – among other complex issues – Whirlpool
used various methods to present evidence, including digital presentations and computer graphics.
See id. at 428 (“we find no limits inherent in the term ‘exemplification’ that would permit a court
to award costs for the more familiar means of illustration – models, charts, graphs, and the like –
but preclude it from compensating a party for an animated reconstruction of an accident, for
example, or other types of computer-based, multimedia displays”); see also Marctec, LLC v.
Johnson & Johnson, 07-cv-8250 DRH, 2010 WL 669818, at *3 (S.D. Ill. Feb. 22, 2010)
(providing an effective presentation – including a computer-generated slide show presentation –
to aid the fact finder is a reasonable necessity).
Whirlpool has also sufficiently substantiated the costs associated for Whirlpool’s
technological consultants’ court attendance. Whirlpool’s technological consultants organized
and then presented the exhibits to the Court and jury, which was an efficient, time-saving
method of presenting complex evidence under the circumstances. See Marctec, 2010 WL
669818, at *3. Finally, LG has failed to factually or legally develop its argument that $7,312.50
of the costs Whirlpool requests are not recoverable under Section 1920(4) because they are for
“trial preparation” meetings. The Court therefore awards Whirlpool $109,833.75 in costs for

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exemplification work used to create and present evidence to the Court and jury at the hearings
and trial.
B.

Photocopying Costs
1.

Court Filings

Next, Whirlpool seeks a total of $171,035.53 for costs associated with photocopies,
including $4,044.15 of costs for pleadings filed with the Court in this case. In particular,
Whirlpool filed a total of 8,987 pages with the Court, including one courtesy copy for the Court
and two internal copies at Reed Smith’s in-house rate of $0.15 per page. See Kulumani, 224
F.3d at 685; Chicago United Indus., 2011 WL 4383007, at *3 (“courts in this district have found
photocopying costs between $0.10 and $0.20 per page to be reasonable” under Section 1920(4)).
The Court awards $4,044.15 because the documentation Whirlpool provides sufficiently details
these costs and they are recoverable and reasonable under Rule 54(d)(1). See Harkins, 286
F.Supp.2d at 980.
2.

Exhibits for Depositions, Hearings, and Trial

In addition to photocopies for their pleadings, Whirlpool requests $66,269.87 for the
photocopying of exhibits for depositions, hearings, and trial. In response, LG argues that
Whirlpool submits vague and confusing invoices from outside vendors that make it hard to
determine what costs are recoverable. Indeed, even though Whirlpool attaches a chart at Exhibit
G that outlines the overall costs for the exhibits, the Court cannot ascertain whether the per page
amount is reasonable and if the additional costs on the vendor invoices are recoverable.
Although the prevailing party need only provide the best breakdown obtainable from the records
in relation to photocopying costs, see Northbrook Excess, 924 F.2d at 643, Whirlpool did not

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provide the Court with sufficient information under this standard. Whirlpool, for example, fails
to explain what the costs for the following entail: Blowbacks, IMG – Project Setup, IMG–FTP
Time, IMG – Sr. Technical Time, GBC Binding, D-Work – Heavy Litigation, C Work – Medium
Litigation, among other invoice descriptions. That being said, some photocopying costs are
warranted due to the extensive materials Whirlpool submitted to substantiate these costs and the
complexity and length of this lawsuit in which the exhibits were used in presenting evidence to
the Court and jury. See id. at 644; McIlveen, 910 F.2d at 1584. The Court thus reduces
Whirlpool’s request by half and awards Whirlpool a total of $33,134.94 for the costs associated
with photocopying of the exhibits for depositions, hearings, and trial. See, e.g., Netcraft Corp. v.
Ebay Inc., No. 07-cv-254-bbc, 2008 WL 4175039, 2 (W.D. Wis. June 12, 2008).
3.

Electronic Discovery

Next, Whirlpool seeks costs related to electronic discovery in the amount of $70,585.12.
Again, although Whirlpool attaches a chart at Exhibit H that outlines the overall costs for
discovery, it is difficult for the Court to determine whether the per page amount is reasonable
and if the additional costs on the vendor invoices are recoverable. Such additional vendor costs
include: Blowbacks, Repository Services, Logical Unitizing, and Reassembly Services. The
Court recognizes that the advances in electronic discovery have changed the nomenclature of the
discovery process. And, even though it is undisputed that electronic discovery costs are
available under Section 1920(4), see Jardin, 2011 WL 4835742, at *5; see also Tibble v. Edison
Int’l, No. CV 07-5359 SVW, 2011 WL 3759927, at *7 (C.D. Cal. Aug. 22, 2011) (collecting
cases), there is scant legal authority in this circuit and district giving litigants guidance in
seeking these costs under Rule 54(d)(1) and Section 1920(4). As such, the Court deducts half of

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Whirlpool’s electronic discovery request and awards Whirlpool $35,292.56 in costs associated
with electronic discovery.
4.

Court Requested Copies

Because the Court requested electronic copies of all exhibits that were used during
witness examinations and for trial, the Court awards Whirlpool $30,136.39 for third-party
vendor costs associated with the processing of electronic trial exhibits for the Court. (See 695,
Whirlpool Ex. I.) In sum, the Court awards Whirlpool $34,180.54 in costs associated with
photocopying pursuant to Section 1920(4).
VI.

Interpreter Costs – 1920(6)
Last, pursuant to 28 U.S.C. § 1920(6), Whirlpool seeks costs associated with oral

interpretation services for the depositions of LG witnesses and for trial pursuant to Section
1920(6). See Extra Equipamentos E Exportacao Ltd., 541 F.3d at 727; Weeks v. Samsung Heavy
Indus. Co., Ltd. 126 F.3d 926, 945-46 (7th Cir. 1997). Indeed, Section 1920(6) authorizes costs
for interpreters who orally translate, but not for translation costs related to documents. See Extra
Equipamentos E Exportacao Ltd., 541 F.3d at 727; see also Trading Tech. Int’l, 750 F.Supp.2d
at 982-83. Here, Whirlpool seeks a total of $9,564.07 for the oral interpreters at the Lee, Kim,
and Bae depositions, as well as the interpreter at trial. Whirlpool’s costs under Section 1920(6)
are both reasonable and recoverable, therefore, the Court awards Whirlpool $9,564.07 for these
oral interpretation services. See Little, 514 F.3d at 702.
In sum, the Court awards Whirlpool $411,029.12 in costs and fees pursuant to Rule
54(d)(1) as follows:

16

Statute or Rule

Amount

Fees for summons/service – 28 U.S.C. §1920(1)

$895.00

Court Reporting Fees – 28 U.S.C. § 1920(2)

$98,096.18

Witness Fees and Travel – 28 U.S.C. § 1920(3)

$19,529.04

Expert Fees – Fed.R.Civ.P. 26(b)(4)(E)

$70,503.05

Exemplification Costs – 28 U.S.C. § 1920(3)

$109,833.74

Photocopying Costs – 28 U.S.C. § 1920(4)

$102,608.04

Interpretation Costs – 28 U.S.C. § 1920(6)

$9,564.07

Total

$411,029.12
CONCLUSION

For the these reasons, the Court denies Plaintiff’s Bill of Costs brought pursuant to
Federal Rule of Civil Procedure 54(d)(1). On the other hand, the Court grants Defendant’s Bill
of Costs and awards Defendant $411,029.12 in costs under Rule 54(d)(1).
Date: October 20, 2011
ENTERED

_______________________________
AMY J. ST. EVE
United States District Court Judge

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