Witt v. Department of the Air Force et al

Filing 179

REPLY, filed by Plaintiff Margaret Witt, TO RESPONSE to 176 MOTION FOR BILL OF COSTS (Kung, Sher)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 A PL.'S REPLY IN SUPP. OF MOT. FOR COSTS (Case No. C06-5195) - 1 CLU OF WASHINGTON FOUNDATION 901 Fifth Avenue 630 Seattle, Washington 98164 (206) 624-2184 The Honorable Ronald B. Leighton UNITED STATES DISTRICT COURT WESTERN WASHINGTON AT MARGARET WITT, Plaintiff, v. UNITED STATES DEPARTMENT OF THE AIR FORCE; ET AL., Defendants. No. 06-5195 RBL PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR COSTS NOTE ON MOTION CALENDAR: OCTOBER 29, 2010 INTRODUCTION Defendants oppose $2,959.77 of Plaintiff's claimed costs under subsections (2) and (4) of 28 U.S.C. §1920. Specifically, Defendants argue against the award of taxed costs for: Loverde's videotaped deposition, counsels' copies of exhibit binders, and two photographic enlargements. Defendants also request the Court hold plaintiff's motion for costs in abeyance pending a final resolution of this matter. Plaintiff disagrees with Defendants and respectfully requests the Clerk to make a ruling on taxable costs now while the matter is still in the Court's recent memory, and because an appeal could extend far into the future. See Lorenz v. Valley Forge Ins. Co., 23 F.3d 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 1259, 1260 (7th Cir. 1994) (Easterbrook, J.) (holding that a district court may award costs even while a substantive appeal is pending).1 A. Anthony Loverde's Videotaped Deposition Is a Taxable Cost First, Defendants take the Court's comments out of context when contending that Loverde's videotape deposition was not necessary. The issue discussed in court was not whether the videotape deposition itself was necessary, but whether it was necessary to play it in open court. Plaintiff is entitled to recover the cost of both Loverde's deposition transcript and the videotape. Each has distinct benefits; "Videotape may provide insight into the demeanor and bearing of a witness, while a written transcript ensures consistency in the written record regarding statements made during the deposition." Slaughter v. Uponor, Inc., No. 2:08-CV01223-RCJ-(GWF), 2010 WL 3781800, at *3 (D. Nev. Sept. 20, 2010) (taxing the costs for obtaining a videotape transcript and recognizing that the Ninth Circuit has not made a clear determination on whether videotape and written depositions can both be taxed). Defendants cite one case where the court found that the videotaped deposition was unnecessary because a stenographically recorded one existed. See Pullela v. Intel Corp., No. CV 08-1427-AC, 2010 WL 3361089, at *3 (D. Or. Aug. 25, 2010). In contrast to that case where the party seeking costs prevailed on summary judgment and the videotape deposition was not used at trial, Plaintiff here played a segment of Loverde's videotape deposition in trial (Dkt. No. 154). B. The Copies of Plaintiff's Exhibit Binders Were Necessarily Obtained for Trial Plaintiff's photocopying of multiple copies of trial exhibits was necessary to trial preparation and performance during trial. Defendants argue that only two sets were necessary, but this neglects to account for Plaintiff's own set of exhibit binders for each counsel. Endress & Hauser, Inc. v. Hawk Measurement Systems Pty. Ltd., 922 F. Supp. 158, 163 (S.D. Ind. 1996) (granting copying costs of preparing five sets of trial exhibit books, used by the Court, its Clerk, and the parties). 1 Defendants also assert in their opposition that Plaintiff abandoned her First Amendment claim before the Ninth Circuit. Plaintiff did not. Plaintiff has reserved the right to raise such a claim en banc to the Ninth Circuit or to the Supreme Court. See Reply Brief of Appellant at 26-27 n.11, Witt v Dep't of Air Force, No. 06-35644 (9th Cir. Jan. 5, 2007); Rough Draft Transcript of Proceedings, Vol. VI at 110:14-111:2 (Sept. 21, 2010). A PL.'S REPLY IN SUPP. OF MOT. FOR COSTS (Case No. C06-5195) - 2 CLU OF WASHINGTON FOUNDATION 901 Fifth Avenue 630 Seattle, Washington 98164 (206) 624-2184 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Counsel relied on hard copies of exhibits during the six day trial, which consisted of over 140 exhibits contained in seven large binders. Plaintiff was represented by two lead counsel, James Lobsenz and Sarah Dunne. At a minimum, two sets of exhibit binders were needed for each of them to independently prepare and examine witnesses. Attorney Kung also examined five witnesses and used exhibits during examination. It would have been impractical to require counsel to share one set of exhibits, carting them back and forth between hotel rooms each evening during the week of trial. Further, Plaintiff's legal assistant was required to have her own set of hard copy exhibits in order to show a clean version on the Elmo during direct and cross examinations. C. The Photographic Enlargements Were Significant Exhibits Used at Trial Defendants cite King v. Kalama School District No. 40, No. C05-5675RBL, 2008 WL 110518, at *2 (W.D. Wash. Jan. 7, 2008), where the Court found that enlargements were unnecessary. Unlike Kalama School District, the public interest in this litigation was and continues to be significant. Given such, one of the enlarged exhibits displayed during opening statements provided a representation of Plaintiff's service in the military. The other enlargement captured the honor and recognition of her service by fellow servicemembers--after finding out she was a lesbian--which goes to the heart of Plaintiff's contention that her presence had and will have no negative impact on unit cohesion or morale. This retirement photo was a significant exhibit used in James Schaffer's key testimony (Dkt. No. 152), and it was necessarily replicated in actual size to preserve likeness. CONCLUSION For the reasons stated above, the court should tax the entirety of Plaintiff's submitted bill of costs, which is already reduced from the actual costs incurred. DATED this 27th day of October, 2010. Respectfully submitted, ACLU OF WASHINGTON FOUNDATION By: _/s/ Sher S. Kung______________ Sarah A. Dunne, WSBA #34869 Sher Kung, WSBA # 42077 ACLU of Washington Foundation A PL.'S REPLY IN SUPP. OF MOT. FOR COSTS (Case No. C06-5195) - 3 CLU OF WASHINGTON FOUNDATION 901 Fifth Avenue 630 Seattle, Washington 98164 (206) 624-2184 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 901 Fifth Avenue, Suite 630 Seattle, WA 98164 dunne@aclu-wa.org skung@aclu-wa.org (206) 624-2184 James Lobsenz, WSBA #8787 CARNEY BADLEY SPELLMAN 700 Fifth Avenue, Suite 5800 Seattle, WA 98104 (206) 622-8020 lobsenz@carneylaw.com Attorneys for Plaintiff A PL.'S REPLY IN SUPP. OF MOT. FOR COSTS (Case No. C06-5195) - 4 CLU OF WASHINGTON FOUNDATION 901 Fifth Avenue 630 Seattle, Washington 98164 (206) 624-2184 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 CERTIFICATE OF SERVICE I hereby certify that on October 27, 2010, I electronically filed Plaintiff's Reply In Support of Motion for Costs with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Peter Phipps peter.phipps@usdoj.gov Marion J. Mittet Jamie.Mittet@usdoj.gov Stephen J. Buckingham Stephen.Buckingham@usdoj.gov Bryan R. Diederich bryan.diederich@usdoj.gov Attorneys for Defendants DATED this 27th day of October, 2010. AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION By: /s/_ Maly Oudommahavanh____ Maly Oudommahavanh Legal Assistant 901 Fifth Avenue, #630 Seattle, WA 98164 Tel. (206) 624-2184 moudommahavanh@aclu-wa.org A PL.'S REPLY IN SUPP. OF MOT. FOR COSTS (Case No. C06-5195) - 5 CLU OF WASHINGTON FOUNDATION 901 Fifth Avenue 630 Seattle, Washington 98164 (206) 624-2184

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