SynQor, Inc. v. Artesyn Technologies, Inc. et al
Filing
1310
MEMORANDUM OPINION AND ORDER - For the following reasons, the Court GRANTS-IN-PART and DENIES-IN-PART. The Court orders Defendants to pay an award of costs in the following amounts herein. Signed by Judge T. John Ward on 9/29/2011. (ch, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
SYNQOR, INC,
v.
ARTESYN TECHNOLOGIES, INC., et al.
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§ CASE NO: 2:07-CV-497-TJW-CE
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MEMORANDUM OPINION AND ORDER
Before the Court is SynQor, Inc.’s (“SynQor”) contested amended bill of costs (Dkt. No.
1275).
For the following reasons, the Court GRANTS-IN-PART and DENIES-IN-PART
SynQor’s amended contested bill of costs.
I.
BACKGROUND
The Court entered a final judgment in this case on August 17, 2011, and awarded costs to
the prevailing party, SynQor. (Dkt. No. 1267.) On August 31, 2011, SynQor submitted an
amended bill of costs. (Dkt. No. 1275.) On September 14, 2011, Defendants submitted a joint
opposition to SynQor’s motion for costs. In the joint opposition, Defendants state that they do
not oppose $194,572.38 of SynQor’s costs (“the Uncontested Costs”). (Dkt. No. 1302 at 2.)
Defendants do oppose SynQor’s request for an award of costs for the following: (1) SynQor’s
request for $54,854.64 in video deposition costs; (2) SynQor’s request for $150,931.90 for
copies and exemplification of documents; and (3) SynQor’s request for $69,982.25 for
audio/visual professional service (“the Contested Costs”).
The Contested Costs total
$275,768.79. Finally, Defendants ask the Court to exercise its discretion and apportion the costs
equally amongst the eleven named defendants. SynQor does not object to this request.
II.
LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 54(d), costs are to be awarded to the
prevailing party as matter of course, unless the Court directs otherwise. However, the provisions
of 28 U.S.C. § 1920 limit the Court’s discretion in taxing costs against the unsuccessful litigant.
See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42 (1987). Although the
prevailing party is entitled to its costs, the prevailing party must still demonstrate that its costs
are recoverable under Fifth Circuit precedent, and the prevailing party should not burden the
Court with costs that are clearly not recoverable under the law. The statute permits the following
recoverable costs:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in
the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title; and
(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.
28 U.S.C. § 1920. A district court is permitted to decline to award costs listed in the statute, but
may not award costs omitted from the statute. See Crawford, 482 U.S. at 441-42; see also
Halliburton Energy Services, Inc. v. M-I, LLC, 244 F.R.D. 369, 371 (E.D. Tex. 2007); Maurice
Mitchell Innovations, L.P. v. Intel Corp., 491 F. Supp. 2d 684, 686 (E.D. Tex. 2007).
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III.
DISCUSSION
The parties have agreed that Defendants will pay the Uncontested Costs in the amount of
$194,572.38. In addition, Defendants have agreed to costs that represent one copy of the
deposition exhibits and any courtesy copies of exhibits and pleadings submitted to this Court for
both pre- and post-trial briefing. Defendants contend that this amount is undetermined because
SynQor refused to provide this information. The Court will briefly address the Contested Costs.
A. Video Deposition Costs
Defendants object to SynQor’s request for $54,854.64 in video deposition costs because
they contend that SynQor will already recover deposition transcript expenses for those same
depositions. Defendants argue that the plain language of 28 U.S.C. § 1920(2) allows recovery
for deposition transcripts or electronic video recording, not both. The Court disagrees. Before
the Judicial Administration and Technical Amendments Act of 2008 amended § 1920, Fifth
Circuit precedent precluded the recovery of costs for videotaping depositions without prior
authorization from the court. See Gaddis v. U.S., 381 F.3d 444, 476 (5th Cir. 2004) (citing Mota
v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d 512, 529-30 (5th Cir. 2001)). Since passage
of the Act, however, § 1920 provides for recovery of “[f]ees for printed or electronically
recorded transcripts necessarily obtained for use in the case.” 28 U.S.C. §1920(2) (emphasis
added). The Fifth Circuit explained this in its 2009 decision in S&D Trading Academy, LLC v.
AAFIS, Inc., 336 Fed. App’x 443, 450-52 (5th Cir. 2009).
As represented to the Court by SynQor, Defendants listed nearly 100 witnesses and all of
the deponents at issue were listed on the parties’ witness lists. Thus, it does not appear to the
Court that these videos were taken for convenience as argued by Defendants. Moreover, the
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Court notes that SynQor did use video transcripts to impeach some of Defendants’ Rule 30(b)(6)
designees. Likewise, Defendants also chose to play video deposition testimony at trial. Thus,
the facts of this case indicate that video depositions were necessarily obtained for presentation of
this case. Accordingly, SynQor is entitled to recover its $54,854.64 of costs for videotaped
depositions.
B. Exemplification and Copying Costs
Defendants object to SynQor’s request of $150,931.90 for additional copies that they
contend were not shown to be necessary for the case. Defendants have agreed to costs that
represent one copy of the deposition exhibits and any courtesy copies of exhibits and pleadings
submitted to this Court for both pre- and post-trial briefing. However, Defendants contend that
this amount is undetermined because SynQor refused to provide this information. SynQor
responds that it cannot reasonably parse through its copying bills to determine the amounts for
the single copies made for the Court and for depositions that Defendants agree are recoverable,
and it is unable to specify the amount.
The Court agrees with Defendants that SynQor is required to provide “some
demonstration that reproduction costs necessarily result from that litigation.” Fogleman v.
Aramco, 920 F.2d 278, 286 (5th Cir. 1991). This includes more than just breaking the copying
costs into categories and providing a conclusory affidavit. However, considering the complexity
of this case, the number of defendants, and the volume of documents involved, the Court finds
that it is reasonable to conclude that a significant portion of the copying costs are recoverable
because they were necessarily obtained for use in the litigation. See 28 U.S.C. § 1920(4); Holmes
v. Cessna Aircraft Co., 11 F.3d 63, 64 (5th Cir. 1994). Indeed, Defendants have agreed to pay
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costs that represent one copy of the deposition exhibits and any courtesy copies of exhibits and
pleadings submitted to this Court for both pre- and post-trial briefing. Having determined that
these costs are recoverable, the Court finds that 75% of the claimed expenses associated with
additional copies is reasonable under the circumstances of this case and awards SynQor
$113,198.93.
C. Costs for Audio and Visual Professional Services
Defendants object to SynQor’s request to tax $74,147.25 for audio and visual
professional services. Defendants do not contest the costs for 17 hours of technician trial time
for an amount of $4,165.00. Defendants do object to the costs associated with the remaining 156
hours of technician time and what they contend are the costs related to the creation and
maintenance of a database, thereby resulting in contested costs of $69,982.25. Although the
Court has encouraged the use of technicians to streamline the presentation of evidence, the Court
has not historically provided recovery for all costs related to technicians. That being said, the
Court finds Defendants’ proposal to be unreasonable because it only provides for 17 hours of the
58.5 hours that the technician spent in trial and also fails to account for any of the technician’s
time spent preparing for trial. See Finisar Corp. v. DIRECTV Group, Inc., No. 1:05-cv-264,
2006 WL 2699732, at *2 (E.D. Tex. Aug. 4, 2006) (“From the beginning the court stressed to all
parties that they needed to agree upon an efficient method to present the case. Both sides used
professional trial technicians to present nearly every aspect of the case. The court deems the
technology used at this trial necessary and reasonable.”).
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Having determined that these costs are recoverable, the Court finds that SynQor should
be awarded 75% of the audio and visual professional services, which results in an award of
$55,610.44. As this Court has previously stated, the use of technology support during trial,
particularly in complicated cases such as this case, is an anticipated, useful, and necessary tool to
assist in the efficient presentation of cases. Accordingly, given the complexity of this case and
the number of defendants, the Court finds that this award of $55,610.44 for costs for audio and
visual professional services is entirely reasonable.
IV.
CONCLUSION
The Court orders Defendants to pay an award of costs in the following amounts:
(1) Fees of Clerk in the amount of $350.00;
(2) Docketing Fees in the amount of $20.00;
(3) Printed Transcripts in the amount of $122,324.85;
(4) In-court Reporting in the amount of $26,651.15;
(5) Costs Related to Interpreters in the amount of $8,120.00;
(6) Exemplification and Copy Fees – Costs for Two Sets of Trial Exhibits is Unopposed
in the amount of $32,941.38;
(7) Video Fees (Depositions) in the amount of $54,854.64;
(8) Exemplification and Copy Fees for Additional Sets of Exhibits in the amount of
$113,198.93; and
(9) Fees for Audio/Visual Professional Services in the amount of $55,610.44;
for a total amount of $414,071.39. As requested by the parties, the Court apportions the costs on
a 1/11th basis and does not find each Defendant joint and severally liable for the costs awarded.
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IT IS SO ORDERED.
SIGNED this 29th day of September, 2011.
__________________________________________
T. JOHN WARD
UNITED STATES DISTRICT JUDGE
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