INEOS USA LLC v. Berry Plastics Corporation

Filing 126

MEMORANDUM AND ORDER granting Ineo's objection to the $650.00 charge and Overruling Ineo's objection to the $5,981.84 charge. (Signed by Judge Gregg Costa) Parties notified.(arrivera, 4)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
INEOS USA LLC,

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Plaintiff,
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VS.
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BERRY PLASTICS CORPORATION, §
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Defendant.
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ACTION

NO.

3:13-CV-

MEMORANDUM AND ORDER
The Federal Circuit recently affirmed the grant of summary judgment
against Ineos on the ground that its patent is invalid. Berry Plastics thus remains
the prevailing party, and its request for $9,202.40 in costs under 28 U.S.C. § 1920
is ripe for adjudication (Docket Entry No. 110). Ineos objects that the submitted
costs include impermissible expenses for electronic discovery services and video
deposition editing, and the taxed amount may not exceed $2,570.56 (Docket Entry
No. 113).
Ineos first objects to $650.00 in costs under Section 1920(2) for editing and
synchronizing video depositions. See 28 U.S.C. § 1920(2) (allowing recovery of
“[f]ees for printed or electronically recorded transcripts necessarily obtained for
use in the case”). The Court agrees that this $650.00 is not recoverable because
“[c]osts associated with video editing and synchronization are not specifically
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enumerated in Section 1920.”1 See Oldham v. Thompson/Ctr. Arms Co., Inc., 2014
WL 1794861, at *5 (S.D. Tex. May 5, 2014); see also Kalitta Air L.L.C. v. Cent.
Texas Airborne Sys. Inc., 741 F.3d 955, 959 (9th Cir. 2013) (“The costs of editing
depositions into video clips to be played for the jury as a substitute for live witness
testimony does not fall within any definition of ‘exemplification,’ and is not
taxable under the costs statute.”). Ineos first objection is granted.
Ineos next objects to $5,331.84 in costs under Section 1920(4) for making
copies of electronic documents. See 28 U.S.C. § 1920(4) (allowing recovery of
“[f]ees for . . . the costs of making copies of any materials where the copies are
necessarily obtained for use in the case”).

While Ineos agrees that the law

generally permits recovery of such costs, see Race Tires Am., Inc. v. Hoosier
Racing Tire Corp., 674 F.3d 158, 167 (3d Cir. 2012) (“[T]he conversion of native
files . . . and the scanning of documents to create digital duplicates are generally
recognized as the taxable making copies of material.”), Ineos argues that Berry
failed to prove the incurred expenses were actually for the purpose of making
electronic copies. The Court disagrees. Berry submitted the affidavit of Adam

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The Court recognizes the division of authority on this issue. BDT Prods., Inc. v.
Lexmark Int'l, Inc., 405 F.3d 415, 419–20 (6th Cir.2005) (permitting costs to synchronize video
depositions); Deimer v. Cincinnati Sub-Zero Products, Inc., 58 F.3d 341, 346 (7th Cir. 1995)
(affirming district court’s award of costs for video editing “[g]iven that statutory authority
exists” to award such costs); Alonzo-Miranda v. Schlumberger Tech. Corp., 2015 WL 3651830,
at *8 (W.D. Tex. June 11, 2015) (permitting the award of video editing expenses because “it was
reasonably necessary for [the prevailing party] to obtain and edit video testimony of two
important witnesses who were totally unavailable for trial”).

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Wald, who was hired to perform the services in question. Mr. Wald detailed the
purpose of each expense as it related to the process of making copies, including:
identifying the data and records to be copied, copying them from the servers, Bates
stamping them, saving them to production media, and conducting quality control.
This affidavit is sufficient to show the costs were for making copies and thus they
are recoverable under Section 1920(4). See Ernst v. Sunbelt Rentals, Inc., 122 F.
App’x 722, 723 (5th Cir. 2004) (finding an affidavit of the person who made the
copies sufficient to prove the amount of the costs and that they were necessary to
the litigation).
The Court GRANTS Ineos’s objection to the $650.00 charge, and
OVERRULES Ineos’s objection to the $5,981.84 charge. Costs will be taxed
against Ineos in the amount of $8,552.40.
SIGNED this 12th day of August, 2015.

______________________________
Gregg Costa
United States Circuit Judge*

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Sitting by designation.

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