Specht et al v. Google Inc et al

Filing 360

MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 6/27/2011:Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ERICH SPECHT, et al.,
Case No. 09 C 2572
Plaintiffs,
v.

Hon. Harry D. Leinenweber

GOOGLE, INC.,

Defendant.

MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Google Inc.’s (hereinafter,
the “Defendant”) Bill of Costs.

For the reasons stated herein,

the Bill of Costs is granted in part and denied in part.
Plaintiffs

Erich

Specht,

Android’s

Dungeon,

Inc.

Android

Data

(hereinafter,

Corporation,
the

and

The

“Plaintiffs”) are

liable to Defendant for $19,063.65 in costs.
I.

INTRODUCTION

On March 11, 2011, the Court entered judgment in favor of
Defendant.

This occurred after Defendant, in an oral motion,

dismissed without prejudice Counts II, IV, V, VI, and VII of its
Counterclaim.

The Court had previously granted summary judgment

in favor of Defendant on Counts I–V of Plaintiffs’ Second Amended
Complaint, and Counts I and III of Defendant’s Counterclaim.
Defendant has submitted a Bill of Costs, pursuant to Federal Rule

of Civil Procedure 54(d) and Local Rule 54.1, which allow for
recovery of the litigation costs specified in 28 U.S.C. § 1920.
Plaintiffs object to most of the submitted costs. The Court must
determine if § 1920 permits Defendant’s claimed expenses, and if
they are reasonable and necessary. See Deimer v. Cincinnati SubZero Prods., Inc., 58 F.3d 341, 345 (7th Cir. 1995).
II.
A.

ANALYSIS

Transcripts, Videos, and Court Reporter Fees

Under Local Rule 54.1, if a prevailing party obtains a
transcript for a use necessary in a case, it may recover the full
cost of the transcript as long as the cost does not exceed the
regular copy rate established by the Judicial Conference of the
United States at the time of the hearing or deposition.
Ill. R. 54.1(b).
$3.65

per

N.D.

The maximum rate allowed during this case was
page.

See

Maximum

Transcript

Rates,

http://www.ilnd.uscourts.gov/CLERKS_OFFICE/CrtReporter/trnscrpt
.htm (last visited June 15, 2011).

Defendant seeks a total of

$20,879.70 in transcript and court reporter fees, which includes
fees for video depositions.

As an initial matter, based on the

affidavit

attorney

from

Defendant’s

Cameron

Nelson

and

the

Court’s familiarity with this case, the Court finds that the
transcripts and videos were necessary for this litigation.
The

Court

first

addresses

the

transcripts

from

court

hearings that Defendant claims as taxable. All but four of these
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transcripts were ordered on an expedited, daily, or 14-day basis,
and cost more than $3.65 per page.

Defendant, however, has not

set

why

forth

a

transcripts.

convincing
Accordingly,

reason
the

page

it

rate

transcripts will be reduced to $3.65 per page.

needed
of

the

expedited
expedited

See Nance v. City

of Elgin, No. 06-C-6608, 2011 WL 1750885, at *2 (N.D. Ill. May 3,
2011).

In addition, Defendant seeks reimbursement for duplicate

copies of

some

transcripts,

generally not recoverable.

but

costs for such

copies

are

See Telular Corp. v. Mentor Graphics

Corp., No. 01-C-431, 2006 WL 1722375, at *3 (N.D. Ill. June 16,
2006).

Recovery for the court proceeding transcripts will be

reduced as follows:
Hearing Date
2/17/2009
6/4/2009
8/18/ & 9/3/2009
10/13/2009
12/3/ & 12/17/2009
2/23/2010
3/24/2010
4/22/2010
5/11/2010
5/27/2010
6/17/2010
7/20/2010
7/27/2010
8/24/2010
9/30/2010
10/14/2010
In

sum,

Defendant

can

Costs Sought
Costs Allowable
$69.00
$43.80
$111.20
$58.40
$43.80
$43.80
$3.60
$3.60
$100.10
$80.30
$109.25
$69.35
$41.20
$29.20
$57.50
$36.50
$57.50
$36.50
$166.75
$83.95
$40.25
$25.55
$149.60
$58.40
$132.25
$83.95
$23.00
$14.40
$45.50
$36.50
$41.20
$29.20
recover

$733.40

proceeding transcripts.

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in

costs

for

court

The Court next turns to the costs for deposition and voice
mail transcripts.
expedited

Here, Defendant again seeks recovery for

transcript

fees,

but

does

not

provide

convincing

reasons why such expedited transcripts were necessary. Defendant
also seeks court reporter attendance fees, which are allowable,
as long as the fees are reasonable.

See Menasha Corp. v. News

Am. Mktg. Instore, Inc., No. 00-C-1895, 2003 WL 21788989, at *2
(N.D. Ill. July 31, 2003)(finding a $60 hourly rate to be
reasonable).

Recovery

for

the

deposition

transcripts

and

associated court reporter fees is as follows:
Deposition
Robblee: 11/5/2009
Sears: 11/6/2009
M. Murphy: 4/8/2010
W. Murphy: 5/4/2010
M. Specht: 5/6/2010
Eide: 7/7/2010
Rubin: 7/9/2010
Flannery: 7/14/2010
Voicemail: 7/14/2010
Voicemail: 7/15/2010
E. Specht: 7/21/2010
White: 7/27/2010
May: 7/27/10
Petrovsky: 7/28/2010
Crum: 7/29/2010

Costs Sought
Costs Allowable
$1,297.50
$1,297.50
$499.10
$499.10
$1,890.40
$1,132.80
$1,526.00
$1,232.00
$1,050.85
$1,050.85
$846.85
$846.85
$325.80
$325.80
$210.60
$210.60
$45.00
$10.95
$75.00
$18.25
$2,517.90
$2,001.30
$138.60
$138.60
$689.40
$689.40
$110.70
$110.70
$753.05
$753.05

In sum, Defendant can recover $10,317.75 in deposition and voice
mail transcript fees, as well as court reporter attendance fees.
The final issue with deposition costs involves Defendant’s
request to recover the fees for videotaping certain depositions.
In a Bill of Costs, the “prevailing party can recover costs for
both a video-recording and a transcript of the same deposition,
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provided

that

the

party

can

show

both

reasonable in the context of the case.”

are

necessary

and

Trading Tech. Int’l,

Inc. v. eSpeed, Inc., 750 F.Supp.2d 962, 976 (N.D. Ill. 2010).
For the first prong of this test, Defendant argues that deponent
Kenneth Robblee’s poor health necessitated use of video at his
deposition, and that Plaintiffs’ counsel’s conduct at the April
8, 2010, deposition of Martin Murphy made it necessary to make
video recordings of further depositions.

Video recording costs

are taxable for witnesses who may not be available at trial.
id. at 977.

See

Accordingly, the video for the Robblee deposition

was necessary.

The Court sanctioned Plaintiffs’ counsel for his

behavior at Murphy’s deposition.

See Memorandum Opinion and

Order, ECF No. 215, June 25, 2010.

Because Plaintiffs’ counsel

engaged in tactics that warranted sanctions, Defendant made the
reasonable decision that making video recordings of subsequent
depositions was necessary to allow the depositions to proceed in
an orderly and effective manner.
In regard to the reasonableness prong to recover video
costs, Plaintiffs do not argue that the costs were unreasonable.
The

Court,

however,

must

still

determine

if

the

costs

are

reasonable. Defendant seeks recovery of a $95 initial fee, a $95
hourly rate to record the deposition, a $110 hourly rate to
digitize and synchronize the deposition video, $15 per video tape
used in each recording, and shipping costs for the videos.

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Shipping charges are ordinary business expenses, and will be
deducted from Defendant’s recovery.
21788989, at *3.

See Menasha Corp., 2003 WL

Further, the initial $95 fee for each of the

seven videos that Defendant seeks is not reasonable.

The video

invoices do not provide any detail about this fee, or why it was
necessary. It does not appear to compensate the videographer for
any hourly work; it simply appears to be an added $95 fee that
the videographer charges for appearing at the deposition.
reporter fees are taxable for each hour worked.
should apply to videographers.

Court

The same rules

As such, the $95 initial fee for

each video recording is not taxable. The other video fees for
which

Defendant

seeks

recovery

are

reasonable.

Therefore,

recovery for the video recording fees is as follows:
Deposition
Video Costs Sought Video Costs Allowable
Robblee: 11/5/2009
$1,483.25
$1,370.00
W. Murphy: 5/4/2010
$1,088.25
$975.00
M. Specht: 5/6/2010
$1,278.25
$1,165.00
Eide: 7/7/2010
$788.25
$675.00
E. Specht: 7/21/2010
$1,748.25
$1,635.00
May: 7/27/2010
$795.75
$682.50
Crum: 7/29/2010
$773.25
$660.00
In

sum,

Defendant

can

recover

$7,162.50

for

making

video

recordings of depositions.
B.

Document and Copying Fees

Defendant seeks to recover the sum of $21,951.16 in “[f]ees
for exemplification and copies of papers necessarily obtained for
use in the case.” 28 U.S.C. § 1920(4).
$17,778.64

for

imaging

and

creating
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This sum includes

electronic

versions

of

documents

which

the

parties

exchanged

in

discovery.

Such

expenses are taxable under when the parties have agreed to
produce documents electronically.

See Fast Memory Erase, LLC v.

Spansion, Inc., No. 10-C-0481, 2010 WL 5093945, at *5 (N.D. Tex.
Nov. 10, 2010).

In this case, Defendant has not produced

evidence that the parties agreed to such electronic production.
It cites to an e-mail from March 26, 2010, that allegedly shows
such an agreement.

This e-mail, however, is a draft that an

associate at the law firm representing Defendant sent to a
partner for review and comment.

No evidence exists that this e-

mail was sent to Plaintiffs. Further, even if this message was
sent to Plaintiffs, it does not reference an agreement to produce
electronic versions of all documents in discovery. It references
electronic production of metadata for only specific documents.
Defendant has not adequately documented that an agreement existed
between the parties to produce documents electronically.

As

such, the $17,778.64 Defendant seeks for these services is not
recoverable.
Defendant seeks the sum of $2,152.15 in photocopying costs
for approximately 21,522 pages of documents.

It has documented

these copies with its internal billing records.

In determining

whether the copies were necessary for the case, “charges for
discovery and court copies are recoverable, but charges for
copies made for attorney convenience are not.”

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Bell v. Keating,

No. 09–C–754, 2011 WL 2182117, at *3 (N.D. Ill. June 2, 2011).
The materials must be prepared to present evidence to the court.
See McIlveen v. Stone Container Corp., 910 F.2d 1581, 1584 (7th
Cir. 1990).

While a Bill of Costs need not contain a description

of the copying “so detailed as to make it impossible economically
to recover” these costs, the party seeking recovery must provide
a sufficient breakdown of the copying.

Northbrook Excess &

Surplus Ins. Co. v. Procter & Gamble Co., 924 F.2d 633, 643 (7th
Cir.

1991).

Defendant’s

internal

billing

records

and

the

affidavit from Nelson do not establish that these copies were
obtained for use in the case. They do not detail which documents
– or even the general category of documents — that were copied.
Therefore,

these

copying

fees

are

unrecoverable

due

to

insufficient documentation.
Defendant also seeks the sum of $1,375.00 for converting
Plaintiffs’ QuickBooks database file to a usable format.

Such

costs for document conversion, however, are not recoverable. See
Windy City Innovations, LLC v. America Online, Inc., No. 04-C4240, 2006 WL 2224057, at *4 (N.D. Ill. July 31, 2006).

It also

seeks $335.36 for printing electronically produced documents, and
$10.01 for electronically endorsing documents.

The electronic

endorsement is not a recoverable expense under § 1920, and
Defendant has not adequately documented that the printing charges
were necessary for use in the case.

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These costs are therefore

unrecoverable.

The one document fee that Defendant may recover

is the $300.00 it paid to the Illinois Secretary of State to
obtain the corporate records of The Android’s Dungeon, Inc. and
Android Data Corporation, as these documents were necessary for
Defendant in this case.

As such, Defendant can recover a total

of $300.00 in document fees.
C.

Process Service Fees

Recovery of summons and subpoena service fees is authorized
under § 1920.
Cir. 1996).

See Collins v. Gorman, 96 F.3d 1057, 1059 (7th

These fees cannot exceed $55.00 per hour — the fee

charged by the United States Marshals Service for service of
process.

See Clarendon Nat’l Ins. Co. v. Medina, No. 08-C-4245,

2010 WL 3526515, at *1 (N.D. Ill. Sept. 1, 2010).

Defendant

seeks reimbursement for $1,070.00 in such fees. Its invoices for
the nine services of process it seeks to recover, however, do not
indicate the time spent effectuating this service.
court will award costs for one hour each.

See id.

As such, the
Defendant can

recover $495.00 in service fees.
D.

Witness Fee

Pursuant to 28 U.S.C. § 1821(b), a witness shall be paid
$40.00 for each day attending a deposition, as well as the travel
costs to and from the deposition.

Defendant seeks to recover

$55.00 for Warren Crum to attend his deposition.

Plaintiffs do

not dispute this fee, and the Court finds that the $15.00 in
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mileage Defendant seeks to recover is properly documented and
reasonable.

As such, this $55.00 is taxable to Plaintiffs.
III.

CONCLUSION

In sum, Defendant’s Bill of Costs is granted in part and
denied in part.

Defendant can recover $18,213.65 in transcript,

court reporter, and video fees; $300.00 in document fees; $495.00
in process service fees; and $55.00 in witness fees.

Plaintiffs

are liable to Defendant for a total of $19,063.65 in costs.
IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
DATE: 6/27/2011

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