Pet Food Express Ltd. v. Applied Underwriters Inc. ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 PET FOOD EXPRESS LTD., No. 2:16-cv-01211 WBS AC 13 Plaintiff, 14 v. MEMORANDUM AND ORDER RE: BILL OF COSTS 15 APPLIED UNDERWRITERS, INC., APPLIED UNDERWRITERS CAPTIVE 16 RISK ASSURANCE COMPANY, INC., CALIFORNIA INSURANCE COMPANY, 17 and APPLIED RISK SERVICES, 18 Defendants. 19 20 ----oo0oo---- 21 After summary judgment was entered in favor of 22 defendant (Docket No. 275), defendants submitted a Bill of Costs 23 totaling $21,246.04 for the costs of subpoenas, transcripts, 24 witness fees, copies, and related expenses. (Docket No. 150). 25 Plaintiff has filed one objection to the Bill of Costs, arguing 26 that the court should not award costs of $10,978.46 submitted 27 pursuant to 28 U.S.C. Section 1920(4) and Local Rule 292(f) (5) 28 for “Fees for exemplification and copies of papers necessarily 1 obtained for use in the action.” (Docket No. 151.) 2 I. Legal Standard 3 Pursuant to 20 U.S.C § 1920(4), a court may tax as 4 costs “[f]ees for exemplification and the costs of making copies 5 of any materials where the copies are necessarily obtained for 6 use in the case.” “The proper application of a narrowly 7 construed § 1920(4) requires that the tasks and services for 8 which an award of costs is being considered must be described and 9 established with sufficient specificity, particularity, and 10 clarity as to permit a determination that costs are awarded for 11 making copies.” In re Online DVD-Rental Antitrust Litig., 779 12 F.3d 914, 928 (9th Cir. 2015). “‘Document production’ and other 13 similarly generic statements on the invoices are unhelpful in 14 determining whether those costs are taxable.” Id. (quoting In re 15 Ricoh Co., Ltd. Patent Litig., 661 F.3d 1361, 1368 (Fed. Cir. 16 2011)). 17 Where the court finds that the costs submitted were 18 incurred for making copies, the court must then determine 19 “whether the copy was necessarily obtained for use in the case.” 20 Id. at 929. “A narrow construction of § 1920(4) requires 21 recognition that the circumstances in which a copy will be deemed 22 ‘necessarily obtained’ for use in a case will be extremely 23 limited.” Id. at 930. “That a chosen ‘document production 24 process’ requires the creation of a copy does not establish that 25 the copy is necessarily obtained for use in the case.” Id. If a 26 copy “was created to be produced in discovery, the cost of making 27 the [copy] would be taxable under § 1920(4).” Id. at 929. By 28 contrast, if a copy “was created solely for the convenience of 1 counsel, the cost of making the copy would not be taxable.” Id. 2 II. Discussion 3 Defendants seek $10,978.46 in costs for “data 4 management,” “blowbacks,”1 index tabs, labels, manila folders, 5 and binders. (See Invoices for Copies, Ex. B (Docket No. 150).) 6 Defendants submit that $10,857.06 constitute costs in connection 7 with the preparation for depositions and deposition examinations 8 of witnesses Terrence Lim, Terri Witriol, Michael Gonzalez, and 9 Mark Witriol. (Def.’s Mem. at 4-5 (Docket No. 150-1).) The 10 remaining $121.40 constitutes one-half of total costs for copies 11 of deposition transcripts lodged with the Court pursuant to Local 12 Rule 133(j) and the Court’s Standard Information in connection 13 with the motion for class certification. (Id.) 14 Blowbacks and the accessories used to assemble binders 15 of copies clearly constitute copies under the meaning of the 16 statute and plaintiff does not appear to seriously dispute this 17 point. (See generally Pl.’s Obj.; see also Eaglesmith v. Ray, 18 No. 2:11-CV00098 JAM-AC, 2013 WL 1281823, at *3 (E.D. Cal. Mar. 19 26, 2013) (“blowbacks” as recoverable costs); Hardwick v. Cty. of 20 Orange, No. SACV131390JLSANX, 2017 WL 5664992, at *3 (C.D. Cal. 21 Oct. 2, 2017) (binder assembly as recoverable costs).) 22 The cost for copies of deposition transcripts similarly 23 constitute a cost for making copies under Section 1920(4) and are 24 recoverable under the statute. See Peacock v. Horowitz, No. 25 2:13-CV-02506-TLN-AC, 2016 WL 7034874, at *2 (E.D. Cal. Dec. 2, 26 2016) (allowing recovery of costs for courtesy copy of transcript 27 1 Blowbacks are the printing of electronic files for 28 review or production in hardcopy form. 1 lodged pursuant to Local Rule 133(j) and noting that “[t]he Ninth 2 Circuit has held that the cost of an original deposition and the 3 copy of a deposition are recoverable under 28 U.S.C. § 1920(2) 4 and (4), and further that an additional copy of a deposition is 5 recoverable as an exemplification under § 1920(4)”) (citing 6 Afflex Corp. v. Underwriters Labs., Inc., 914 F.2d 175, 177 (9th 7 Cir. 1990)). 8 “Data management,” without further explanation, by 9 contrast, does not constitute a cost of making copies. Only 10 invoice No.90028978 charges for data management. (See Invoices 11 for Copies.) The invoice charges for 5.5 hours of “data 12 management” at a rate of $150.00 per hour. Counsel’s statements 13 establish only that the copying under all invoices was in 14 connection with various depositions. The statements do not, 15 however, establish that this data management item entailed the 16 making of copies and the court cannot infer that it did. The 17 item description is not sufficiently specific, particular, or 18 clear “as to permit a determination that costs are awarded for 19 making copies.” See In re Online DVD-Rental, 779 F.3d at 928. 20 Accordingly, costs for data management amounting to $825.00 are 21 not taxable. 22 Next, the court considers whether the copies associated 23 with the $10,153.46 in costs ($10,978.46 minus $825.00) were 24 necessarily obtained for the use in the case. Plaintiff objects 25 that “[n]othing” describes how the copies were necessary in this 26 case. (Pl.’s Objections at 3.) The court disagrees. Defendants 27 describe how the copies were created for use in depositions of 28 various witnesses, and how the copies were required for each of 2.4 UV VIE At RIN OMIT I □□ □□ POY VI 1 the deposition participants and were not merely for the 2 convenience of counsel. (Def.’s Mem. at 4-5.) Cf. In re Online 3 DVD-Rental, 779 F.3d at 933 (affirming where district court found 4 costs of printing exhibits and deposition transcripts to be 5 taxable based on invoices and attorney declarations). The 6 invoices and counsel’s statements therefore suffice for this 7 court to find that the copies were necessarily obtained for use 8 in this case. 9 IT IS THEREFORE ORDERED that costs for making copies of 10 $10,153.46, as well as the uncontested costs of $10,252.48, for a 11 total of $20,396.04, will be allowed for defendants and are taxed 12 against plaintiff. 13 Dated: August 24, 2020 □□ ZL * ak. M4 □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ 15 UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28