Free Stream Media Corp. v. Alphonso Inc.

RESPONSE re Bill of Costs Plaintiff's Opposition to Defendants' Revised Bill of Costs

N.D. Cal.February 26, 2019

PLAINTIFF’S OPPOSITION TO COSTS CASE NO. 3:17-CV-02107-RS 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 MATTHEW D. POWERS (Bar No. 104795) matthew.powers@tensegritylawgroup.com PAUL T. EHRLICH (Bar No. 228543) paul.ehrlich@tensegritylawgroup.com WILLIAM P. NELSON (Bar No. 196091) william.nelson@tensegritylawgroup.com STEFANI C. SMITH (Bar No. 251305) stefani.smith@tensegritylawgroup.com JENNIFER K. ROBINSON (Bar No. 270954) jen.robinson@tensegritylawgroup.com SAMANTHA A. JAMESON (Bar. No. 296411) samantha.jameson@tensegritylawgroup.com NATASHA M. SAPUTO (Bar No. 291151) natasha.saputo@tensegritylawgroup.com ALEX H. CHAN (Bar No. 278805) alex.chan@tensegritylawgroup.com WANLI CHEN (Bar No. 300254) wanli.chen@tensegritylawgroup.com TENSEGRITY LAW GROUP, LLP 555 Twin Dolphin Drive, Suite 650 Redwood Shores, CA 94065 Telephone: (650) 802-6000 Facsimile: (650) 802-6001 Attorneys for Plaintiff Free Stream Media Corp. d/b/a Samba TV UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION FREE STREAM MEDIA CORP., d/b/a SAMBA TV, Plaintiff, vs. ALPHONSO INC., ASHISH CHORDIA, RAGHU KODIGE, and LAMPROS KALAMPOUKAS, Defendants. Case No. 3:17-cv-02107-RS PLAINTIFF’S OPPOSITION TO DEFENDANTS’ REVISED BILL OF COSTS Judge: Hon. Richard Seeborg Dept: Courtroom 3, 17th Floor Time: 1:30 p.m. Date: March 7, 2019 Case 3:17-cv-02107-RS Document 399 Filed 02/26/19 Page 1 of 10 PLAINTIFF’S OPPOSITION TO COSTS i CASE NO. 3:17-CV-02107-RS 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 TABLE OF CONTENTS I. INTRODUCTION .......................................................................................................... 1 1. Legal Standard ........................................................................................ 1 2. Specific Objections ................................................................................. 2 a. Fees for Deposition Transcripts or Video Recording .................... 2 (1) Additional Copies of a Deposition Beyond the Original and One Copy Permitted By Local Rule 54-3(c)(1) Are Non-Taxable ............................................. 3 (2) Alphonso Has Failed to Establish That Unspecified “Video Services” Is Necessary or Taxable ........................ 4 (3) Electronically Searchable and Hyperlinked Deposition Exhibits Are Neither Necessary Nor Taxable ............................................................................ 5 II. CONCLUSION .............................................................................................................. 6 Case 3:17-cv-02107-RS Document 399 Filed 02/26/19 Page 2 of 10 PLAINTIFF’S OPPOSITION TO COSTS ii CASE NO. 3:17-CV-02107-RS 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 TABLE OF AUTHORITIES Cases CBT Flint Partners, LLC v. Return Path, Inc., 737 F.3d 1320 (Fed. Cir. 2013) ............................................................................................... 2 City of Alameda v. Nuveen Mun. High Income Opportunity Fund, No. C 08-4575 SI, 2012 U.S. Dist. LEXIS 7403 (N.D. Cal. Jan. 23, 2012) ......................... 2, 3 Cooper v. United Air Lines, Inc., No. 13-cv-02870, 2015 U.S. Dist. LEXIS 73370 (N.D. Cal. June 5, 2015) ......................... 2, 3 EEOC v. Ford Motor Co., No. 11-13742, 2012 U.S. Dist. LEXIS 168383 (E.D. Mich. Nov. 28, 2012) ............................ 6 Fitbug Ltd. V. Fitbit, Inc.,, No. 13-1418, 2015 U.S. Dist. LEXIS 62879 (N.D. Cal. May 13, 2015) ............................... 3, 4 Glazer v. Whirlpool Corp., No. 1:08-WP-65000, 2015 U.S. Dist. LEXIS 193975 (N.D. Ohio Feb. 18, 2015) .................... 6 In re Online DVD-Rental Antitrust Litig., 779 F.3d 914 (9th Cir. 2015) ................................................................................................... 5 Johnson v. Hewlett-Packard Co., No. 09-03596, 2014 U.S. Dist. LEXIS 101512 (N.D. Cal. July 24, 2014) ............................... 4 Kalitta Air LLC v. Cent. Tex. Airborne Sys. Inc., 741 F.3d 955 (9th Cir. 2013) ................................................................................................... 5 Taniguchi v. Kan Pac. Saipan, Ltd., 132 S. Ct. 1997 (2012) ............................................................................................................ 2 Rules 28 U.S.C. § 1920 ......................................................................................................................... 2 Case 3:17-cv-02107-RS Document 399 Filed 02/26/19 Page 3 of 10 PLAINTIFF’S OPPOSITION TO COSTS 1 CASE NO. 3:17-CV-02107-RS 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 I. INTRODUCTION Alphonso’s Bill of Costs seeks numerous costs that go beyond those permitted by Section 1920, Federal Rule of Civil Procedure 54, and this Court’s Local Rule 54. These unsubstantiated and non-taxable costs should be disallowed, and the clerk should elect to tax Samba with at most the amount remaining after these disallowed costs are removed.1 Alphonso’s Revised Bill of Costs (ECF No. 393) seeks a total of $61,714.61 in expenses that Alphonso asserts are taxable under two categories of Local Rule 54: • $59,800.10 for deposition transcript/video recording (Civil LR 54-3(c)(1): “The cost of an original and one copy of any deposition (including videotaped depositions) taken for any purpose in connection with the case is allowable”); and • $1,914.51 for disclosure/formal discovery documents (Civil LR 54-3(d)(2): “The cost of reproducing disclosure or formal discovery documents when used for any purpose in the case is allowable”). ECF No. 393. However, the first category of Alphonso’s Bill of Costs improperly contains expenses that Alphonso has not shown to be taxable under Section 1920, Local Rule 54, and the case law of this Court and the Ninth Circuit Court of Appeals. As shown below, because Alphonso has not met its burden of establishing the taxability of at least $17,623.35 of its requested expenses, at least those expenses should be disallowed and subtracted from the amount of costs taxed by the Clerk and this Court.2 1. Legal Standard As the Supreme Court has explained, taxable costs under 28 U.S.C. Section 1920, Federal Rule of Civil Procedure 54, and Local Rule 54, “are limited to relatively minor, incidental 1 The Court should also exercise its discretion to reduce or decline to tax even these potentially taxable costs due to the balance of the equities in this case, including the complex nature of this case, and the closeness of the issues in dispute. Pursuant to Federal Rule of Civil Procedure 54(d)(1), Samba may further brief these equitable issues in a subsequent motion for the Court to review the Clerk’s determination of taxable costs. 2 On February 1, 2019 Samba met and conferred with Alphonso regarding Samba’s objections to Alphonso’s Bill of Costs. Nelson Decl., ¶ 7. Based on this meet and confer Alphonso provided Samba with a revised version of ECF No. 373 (Bill of Costs) and ECF No. 373-3 (Exhibit A). Id. ¶¶ 8-9; Id. Exs. 1-2. Alphonso filed a revised Bill of Costs on February 12, 2019. ECF Nos. 393, 393-1, 393-2, 393-3. Nelson Decl., ¶ 10. Samba has identified no difference in the amount or substance of costs sought by Alphonso between Exhibits 1 and 2 hereto and ECF Nos. 393 and 393-2. Nelson Decl., ¶ 11. Case 3:17-cv-02107-RS Document 399 Filed 02/26/19 Page 4 of 10 PLAINTIFF’S OPPOSITION TO COSTS 2 CASE NO. 3:17-CV-02107-RS 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 expenses,” “are limited by statute,” and are “narrow” and “modest in scope.” Taniguchi v. Kan Pac. Saipan, Ltd., 132 S. Ct. 1997, 2006 (2012); CBT Flint Partners, LLC v. Return Path, Inc., 737 F.3d 1320, 1327 (Fed. Cir. 2013). Section 1920 sets out the six limited categories of expenses that district courts may, in their discretion, tax as costs. 28 U.S.C. § 1920. This Court’s Local Rule 54 further elaborates on what expenses are considered to be taxable under Section 1920. Civil L.R. 54-3. For each of the itemized costs Alphonso seeks, Alphonso bears the burden of establishing in its Bill of Costs the amount of compensable, necessary costs and expenses to which it is entitled under Section 1920 and Local Rule 54. See Cooper v. United Air Lines, Inc., No. 13-cv-02870, 2015 U.S. Dist. LEXIS 73370, *3 (N.D. Cal. June 5, 2015); City of Alameda v. Nuveen Mun. High Income Opportunity Fund, No. C 08-4575 SI, 2012 U.S. Dist. LEXIS 7403, *7 (N.D. Cal. Jan. 23, 2012). 2. Specific Objections a. Fees for Deposition Transcripts or Video Recording Alphonso seeks $59,800.10 in expenses related to deposition transcript and video recording. ECF No. 393. However, the invoices submitted by Alphonso reveal that many of the expenses it seeks to collect are non-taxable. This includes: copies beyond the one original and one additional copy of a deposition allowed by Local Rule 54-3(c); significant but undefined costs related to “Video – Services”; and extras such as OCR and hyperlinking that Courts have repeatedly found to be non-taxable. See generally ECF No. 393-2. Because of the large number of deposition and other transcript invoices included in Alphonso’s Bill of Costs (as well as the large number of different expenses included in each invoice), Samba has attached to this Opposition tables respectively identifying three categories of non-taxable costs, as further addressed below. These are Exhibit 3 (Costs Related to Additional Copies of Depositions), Exhibit 4 (Costs Related to Video Services), and Exhibit 5 (Costs Related to OCR and Hyperlinking). As shown by these Exhibits, Samba should be taxed with no more than $42,176.75 for taxable deposition costs, and at least $17,623.35 should be subtracted from Alphonso’s requested costs as disallowed, non-taxable costs. Case 3:17-cv-02107-RS Document 399 Filed 02/26/19 Page 5 of 10 PLAINTIFF’S OPPOSITION TO COSTS 3 CASE NO. 3:17-CV-02107-RS 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 (1) Additional Copies of a Deposition Beyond the Original and One Copy Permitted By Local Rule 54-3(c)(1) Are Non-Taxable Civil Local Rule 54-3(c)(1) allows costs for “an original and one copy of any deposition (including videotaped depositions).” Courts of this district have repeatedly read this rule to bar a prevailing party from collecting expenses associated with copies beyond the original and one copy (or two copies in the event that the original is delivered to the non-prevailing party). See, e.g., Cooper v. United Air Lines, Inc., No. 13-cv-02870-JSC, 2015 U.S. Dist. LEXIS 73370, *6-7 (N.D. Cal. June 5, 2015) (“two invoices reflect the costs for an ‘original + one certified copy’ for each of Plaintiff's two depositions, and two invoices reflect the costs for videotaped versions of the same depositions. The costs of the videotaped depositions thus exceed the costs authorized by Civil Local Rule 54-3(c)(1)”) (internal citations omitted); Fitbug Ltd. V. Fitbit, Inc.,, No. 13-1418, 2015 U.S. Dist. LEXIS 62879, at *17 (N.D. Cal. May 13, 2015) (same); City of Alameda, 2012 U.S. Dist. LEXIS 7403, at *11 (“Alameda does not cite any authority for the proposition that it may recover for the costs of ‘rough’ disks, ‘miniscripts’ or expedited transcripts in addition to the cost of an original and one copy of a deposition permitted under Civil Local Rule 54-3(c)(1). Courts in the Northern District have held that costs for additional copies of transcripts are not recoverable.”). In violation of the rules, Alphonso’s Bill of Costs includes substantial expenses for deposition copies beyond the original and one copy permitted by Local Rule 54-3(c)(1). For eight depositions invoiced by Chase, Alphonso seeks costs for additional copies of the depositions beyond the two permitted by Local Rule 54-3(c)(1). See ECF No. 393-2 at 5 (invoice for Kalampoukas deposition Vol. I); id. at 6 (invoice for Kalampoukas deposition Vol. II); id. at 12 (invoice for Kodige deposition Vol. I); id. at 13 (invoice for Kodige deposition Vol. II); id. at 14 (invoice for Chordia deposition Vol. I); id. 15 (invoice for Chordia deposition Vol. II); id. at 30 (invoice for Chordia deposition Vol. III); id. at 21 (invoice for Zachariah deposition). For all of the depositions invoiced by Chase, Alphonso received “1 CERTIFIED PAPER & ELECTRONIC FINAL TRANSCRIPT.” See, e.g., ECF No. 393-2 at 5 (invoice for Kalampoukas deposition Vol. I). These two copies—the certified paper and certified electronic— are the only copies of the deposition that are properly taxable to Samba pursuant to Local Rule 54- Case 3:17-cv-02107-RS Document 399 Filed 02/26/19 Page 6 of 10 PLAINTIFF’S OPPOSITION TO COSTS 4 CASE NO. 3:17-CV-02107-RS 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 3(c)(1). See also Fitbug, 2015 U.S. Dist. LEXIS 62879, at *18. However, for eight of the depositions invoiced by Chase, Alphonso is also seeking costs for a third “Video Transcript” listed under the billing code “Video Transcript Rate.” See ECF No. 393-2 at 5 (invoice for Kalampoukas deposition Vol. I); id. at 6 (invoice for Kalampoukas deposition Vol. II); id. at 12 (invoice for Kodige deposition Vol. I); id. at 13 (invoice for Kodige deposition Vol. II); id. at 14 (invoice for Chordia deposition Vol. I); id. 15 (invoice for Chordia deposition Vol. II); id. at 30 (invoice for Chordia deposition Vol. III); id. at 21 (invoice for Zachariah deposition). For each of these eight depositions, the video transcript would be the third copy received by Alphonso and therefore, the costs associated with this additional transcript is not recoverable. Samba has included the $1,317.00 in expenses related to these additional video transcripts (“Video Transcript Rate”) in the “Amount of Disallowed Costs” (Column D) of Exhibit 3 (Costs Related to Additional Copies of Depositions) and these disallowed costs should be subtracted from any costs taxed to Samba. (2) Alphonso Has Failed to Establish That Unspecified “Video Services” Is Necessary or Taxable Alphonso also seeks to recover substantial costs related to unspecified “Video – Services” for two depositions invoiced by Veritext. See, e.g., ECF No. 393-2 at 32 (invoice for Bakewell deposition “Video – Services . . . $2,227.50”); id. at 33 (invoice for Zatkovich deposition “Video – Services . . . $2,029.50”). However, Alphonso provides no explanation as to what the billing code “Video – Services” includes and why it is properly recoverable. See Johnson v. Hewlett- Packard Co., No. 09-03596, 2014 U.S. Dist. LEXIS 101512, at *19 (N.D. Cal. July 24, 2014) (denying costs where invoices were “too vague” to determine what charges are for allowable costs and which are for unallowable costs). The top of each invoice notes that the delivery is to be “Expedited” but there is no separate entry for those costs. Thus, the charges for “Video-Services” —over $2,000 for each billing entry—suggests that “Video-Services” includes expediting costs which are not recoverable. See Fitbug, 2015 U.S. Dist. LEXIS 62879, at *6 May 13, 2015)(“Shipping or expedited delivery charges are not allowable as costs.”). To the extent that “Video – Services” includes costs for transcript and deposition synchronization, the Ninth Circuit has held those are not recoverable. See Kalitta Air LLC v. Cent. Tex. Airborne Sys. Inc., 741 F.3d Case 3:17-cv-02107-RS Document 399 Filed 02/26/19 Page 7 of 10 PLAINTIFF’S OPPOSITION TO COSTS 5 CASE NO. 3:17-CV-02107-RS 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 28 955, 958-959 (9th Cir. 2013) (finding that expenses incurred only for the convenience of counsel, like synchronized deposition videotapes, do not meet the necessity requirement of Section 1920). Because Alphonso’s Bill of Costs does not establish that these costs were necessary or otherwise properly taxable under Section 1920 or Local Rule 54, Samba has included the $4,257.00 in expenses related to “Video-Services” in the “Amount of Disallowed Costs” (Column D) of Exhibit 4 (Costs Related to Video Services) and these disallowed costs should be subtracted from the costs requested by Alphonso. (3) Electronically Searchable and Hyperlinked Deposition Exhibits Are Neither Necessary Nor Taxable Alphonso also seeks substantial costs relating to creating electronically searchable and hyperlinked deposition exhibits for 28 depositions invoiced by TSG, Chase and Veritext. See, e.g., ECF No. 393-2 at 16 (invoice for Ashwin Navin deposition Vol. I “Exhibits – Scanned & Hyperlinked – B&W” and “Exhibits – Scanned & Hyperlinked – Color”); id. at 7 (invoice for Moose deposition “Exhibits OCR B/W Scanned & Hyperlinked” and “Exhibits OCR Color Scanned & Hyperlinked”); id. at 28 (invoice for Zatkovich deposition “Exhibits Scanned- Searchable – OCR”). Alphonso’s Bill of Costs does not establish that the creation of electronically searchable and hyperlinked exhibits costs was necessary or otherwise properly taxable under Section 1920 or Local Rule 54. For each of the depositions noticed by Samba, Samba’s counsel provided courtesy copies of every exhibit used at the deposition to Alphonso’s counsel. Nelson Decl., ¶ 12. Moreover, the vast majority of deposition exhibits used in the depositions noticed by either side were production documents already produced to (or by) Alphonso in the ordinary course of discovery. Id. Samba is not aware of any instance (and Alphonso’s Bill of Costs does not allege any) in which a witness annotated, wrote on, or otherwise materially altered an exhibit from the production and/or courtesy copy already provided by Samba to Alphonso. Id. Therefore, additional expenses for electronically scanning and creating electronically searchable and hyperlinked exhibits after the completion of the deposition was again duplicative, not necessary, and (at most) was merely for the convenience of counsel. These copies created solely for the convenience of counsel are not taxable. See In re Online DVD-Rental Antitrust Litig., 779 F.3d 914, 929-930 (9th Cir. 2015) (“However, if the faxed Case 3:17-cv-02107-RS Document 399 Filed 02/26/19 Page 8 of 10 PLAINTIFF’S OPPOSITION TO COSTS 6 CASE NO. 3:17-CV-02107-RS 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 copy was created solely for the convenience of counsel, the cost of making the copy would not be taxable . . . A narrow construction of § 1920(4) requires recognition that the circumstances in which a copy will be deemed ‘necessarily obtained’ for use in a case will be extremely limited.”) (emphasis added); Glazer v. Whirlpool Corp., No. 1:08-WP-65000, 2015 U.S. Dist. LEXIS 193975, *15-16 (N.D. Ohio Feb. 18, 2015); EEOC v. Ford Motor Co., No. 11-13742, 2012 U.S. Dist. LEXIS 168383, *3 (E.D. Mich. Nov. 28, 2012) (“certain ‘extras’ such as ‘hyperlinked exhibits on CD’ and tabbing exhibits are done for the convenience of counsel and are not necessary.”) Moreover, the costs for the deposition exhibits are non-itemized. This means that even if the costs for an additional set of exhibits is taxable, those costs could not be separated from the untaxable costs for making those exhibits electronically searchable and hyperlinked. The costs related to creating electronically searchable and hyperlinked deposition exhibits are duplicative, unnecessary, and were merely for the convenience of counsel. Samba has included the $12,049.35 in expenses relating to these services in the “Amount of Disallowed Costs” (Column D) of Exhibit 5 (Costs Related to OCR and Hyperlinking) and these disallowed costs should be subtracted from any costs taxed to Samba. II. CONCLUSION For the reasons explained above, to the extent costs are taxed at all, Samba should be taxed with no more than $44,091.26 (the amount left after subtracting the at least $17,623.35 of disallowed costs from Alphonso’s originally requested amount). Dated: February 26, 2019 Respectfully submitted /s/ William P. Nelson Matthew D. Powers (Bar No. 104795) Paul T. Ehrlich (Bar No. 228543) William P. Nelson (Bar No. 196091) Stefani C. Smith (Bar No. 251305) Jennifer K. Robinson (Bar No. 270954) Samantha A. Jameson (Bar. No. 296411) Natasha M. Saputo (Bar No. 291151) Alex H. Chan (Bar No. 278805) Wanli Chen (Bar No. 300254) TENSEGRITY LAW GROUP, LLP Case 3:17-cv-02107-RS Document 399 Filed 02/26/19 Page 9 of 10 PLAINTIFF’S OPPOSITION TO COSTS 7 CASE NO. 3:17-CV-02107-RS 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 28 555 Twin Dolphin Drive, Suite 650 Redwood Shores, CA 94065 Telephone: (650) 802-6000 Facsimile: (650) 802-6001 Email: matthew.powers@tensegritylawgroup.com paul.ehrlich@tensegritylawgroup.com william.nelson@tensegritylawgroup.com stefani.smith@tensegritylawgroup.com jen.robinson@tensegritylawgroup.com samantha.jameson@tensegritylawgroup.com natasha.saputo@tensegritylawgroup.com alex.chan@tensegritylawgroup.com wanli.chen@tensegritylawgroup.com samba_service@tensegritylawgroup.com Attorneys for Plaintiff, Free Stream Media Corp. d/b/a Samba TV Case 3:17-cv-02107-RS Document 399 Filed 02/26/19 Page 10 of 10