Summary
deciding motion for review of taxation of costs after affirmance by Federal Circuit
Summary of this case from LG Electronics, Inc. v. Bizcom Electronics, Inc.Opinion
Case Number C-02-01617-JF (PVT), Case Number C-02-05416-JF (PVT).
November 29, 2004
ORDER GRANTING IN PART ISHIDA'S MOTION FOR REVIEW OF TAXED COSTS
On November 3, 2003, the Court entered judgment in favor of Ishida Co., Ltd. and Heat and Control, Inc. (collectively "Ishida") and against Alfred A. Taylor and TNA Australia Pty., Ltd. (collectively ("Taylor"). On December 19, 2003, Ishida filed a motion for review of taxed costs. Taylor filed an opposition on January 16, 2004 and Ishida filed a reply on January 21, 2004. On November 3, 2004, the United States Court of Appeals for the Federal Circuit affirmed the judgment. Ishida's motion for review of taxed costs now is ripe for disposition.
Ishida filed a Bill of Costs seeking a total of $41,074.66, representing $1,436.85 in deposition and transcript costs, $690 in filing and service costs and $38,947.81 in exemplification costs. The Clerk cut the deposition and transcript costs to $647.35, allowed in their entirety the filing and service costs of $690 and disallowed in their entirety the exemplification costs, for total taxed costs of $1,337.35.
A. Deposition And Transcript Costs
Ishida's request for deposition and transcript costs is governed by Civ. L.R. 54-3(c). The Clerk allowed the costs of an original and one copy of the depositions of Alfred Taylor and Charles Steward pursuant to subsection (c)(1), the costs of reproducing exhibits to the depositions pursuant to subsection (c)(3) and the cost of delivery to Taylor's counsel. The Clerk disallowed the reporter's attendance fees ($300.40), the reporter's costs in certifying and binding the transcripts ($30) and the cost of delivery to Ishida's counsel ($35). All of these costs are allowable under subsection (c)(1) as costs of the original and one copy of the transcript. The Court notes that, although Rule 54-3(c) does not explicitly provide for recovery of the reporter's attendance fee when a deposition is taken, subsection (c)(5) does provide for recovery of the reporter's attendance fee when a witness fails to appear. It would be illogical if the same attendance fee were not permitted when the witness does appear.
The Clerk disallowed fees for realtime hookups ($249), ASCII/Mini/E-tript ($20) and E-Transmission or E-Transcript ($25). Ishida argues that these services represent technological advances and nowadays commonly are incurred in connection with depositions. While these services may provide added convenience to counsel, they are "extras" in addition to the one original and one copy of the transcript allowed under the rule. Accordingly, these costs properly were disallowed by the Clerk.
Finally, the Clerk disallowed the cost of the transcript of the hearing of the parties' cross-motions for summary judgment ($53.90). These costs are allowable under Civ. L.R. 54-3(b)(1), as the transcript necessarily was obtained for appeal.
The Court therefore will increase the taxed costs in this category to $1,096.65.
B. Exemplification Costs
Ishida's request for exemplification costs is governed by Civ. L.R. 54-3(d)(5), which allows for "[t]he cost of preparing charts, diagrams, videotapes and other visual aids to be used as exhibits" so long as such exhibits "are reasonably necessary to assist the jury or the Court in understanding the issues at the trial." The Clerk disallowed the entire $38,947.81 requested, which represented the costs of computer animation ($38,275.58), color exhibit boards ($558.57) and still images captured from Taylor's DVD video ($113.66). For the most part, these visual aids were not reasonably necessary to the Court's understanding of the issues in the case. As counsel are well aware, the Court had extensive knowledge regarding the patent-in-suit as a result of the prior litigation between the two parties, Ishida Co., Ltd. v. Alfred A. Taylor, C-98-20418. In that prior action, Ishida's counsel requested only $19,781.24 in exemplification costs, which included costs for extensive computer graphics displays used in the claim construction hearing. In the instant case, no claim construction hearing was required, and the infringement analysis essentially consisted of examining the reasoning of this Court and the Federal Circuit in finding non-infringement of the Apex machine and concluding that the same analysis mandated a finding of non-infringement of the Atlas machine. Accordingly, while some modest visual aids may have been reasonably necessary to refresh the Court's recollection and demonstrate the ways in which the Atlas machine differs from the Apex machine, the costs requested are excessive.
The Court therefore will increase the taxed costs in this category to $2,000.
ORDER
It is hereby ordered that costs are taxed in the amount of $3,786.65.