EcoServices, LLC v. Certified Aviation Services, LLC

RESPONSE

C.D. Cal.February 8, 2019

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 Ronald J. Pabis (pro hac vice) rpabis@goodwinlaw.com Stephen K. Shahida (pro hac vice) sshahida@goodwinlaw.com Patrick J McCarthy (pro hac vice) pmccarthy@goodwinlaw.com Myomi Tse Coad (pro hac vice) mcoad@goodwinlaw.com GOODWIN PROCTER LLP 901 New York Avenue NW Washington, DC 20001 Tel.: +1 202 346 4000 Fax.: +1 202 346 4444 Natasha E. Daughtrey (SBN 319975) ndaughtrey@goodwinlaw.com GOODWIN PROCTER LLP 601 S Figueroa Street 41st Floor Los Angeles, California 90017 Tel.: +1 213 426 2500 Fax.: +1 213 623 1673 Attorneys for Plaintiff ECOSERVICES, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION ECOSERVICES, LLC, Plaintiff, v. CERTIFIED AVIATION SERVICES, LLC, Defendant. Case No. 5:16-cv-01824-RSWL-SPx PLAINTIFF ECOSERVICES, LLC’S RESPONSES TO DEFENDANT CERTIFIED AVIATION SERVICES, LLC’S OBJECTIONS TO ECOSERVICES, LLC’S APPLICATION TO THE CLERK TO TAX COSTS Judge: Hon. Ronald Sing Wai Lew Case 5:16-cv-01824-RSWL-SP Document 301 Filed 02/08/19 Page 1 of 14 Page ID #:17793 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 Pursuant to Local Rule (“L.R.”) 54-2.3, Plaintiff EcoServices, LLC (“EcoServices”) files these written responses to Defendant Certified Aviation Services, LLC’s (“CAS”) objections to EcoServices’ Application To The Clerk To Tax Costs (“Application”) (ECF No. 299). For the Clerk’s ease of reference, EcoServices provides its responses to CAS’s objections in the order CAS presented its objections that were filed on February 5, 2019 (ECF No. 300). Attached hereto are amended Exhibits A and C-F (Exhibit B has been withdrawn; and Exhibit G is unchanged), a revised Form CV-59, and an itemization chart that reflects updated amounts based on the parties’ agreements and EcoServices’ responses to CAS’s objections. Revised Form CV-59 reflects a total amount of $115,988.35 as being taxable under L.R. 54-3. Case 5:16-cv-01824-RSWL-SP Document 301 Filed 02/08/19 Page 2 of 14 Page ID #:17794 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 2 ECOSERVICES’ RESPONSES TO CAS’S OBJECTIONS L.R. 54-3.2 Fees for Service of Process (ECF No. 299-3: Exhibit A)  EcoServices’ response to CAS’s objection 1: EcoServices agrees to withdraw pages 5 through 133 of Exhibit A. Attached hereto is an amended Exhibit A that contains an invoice showing a fee of $163.50 for service of process of the summons in this case. Accordingly, EcoServices agrees that $163.50 is taxable under this L.R. L.R. 54-3.4 Transcripts of Court Proceedings (ECF No. 299-4: Exhibit B)  EcoServices’ response to CAS’s objection 2: EcoServices agrees to withdraw the cost listed under this L.R. in its Application in the amount of $14,720.52 and invoices contained in Exhibit B. Accordingly, there is no taxable cost under this category for the Clerk to consider. L.R. 54-3.5 Depositions (ECF No. 299-5: Exhibit C)  EcoServices’ response to CAS’s objection 3: After meeting and conferring with CAS, EcoServices maintains that it is entitled to recover the cost of video recording of the depositions under L.R. 54-3.10(g).  EcoServices’ response to CAS’s objection 4: EcoServices agrees to withdraw the cost of expedited preparation of the transcription where applicable. Attached hereto is an amended Exhibit C that contains more detailed invoices that indicate when expedited preparation costs were incurred.1 For example, invoices that list either “4 Day Expedite,” “2 Day Copy,” or “4 Day Copy” indicate the additional charges paid to expedite preparation of the transcription. Invoices that do not list either 4 Day Expedite,” “2 Day Copy,” or “4 Day Copy” indicate ordinary, non-expedited preparation of the transcription. EcoServices has removed the total additional charges paid to expedite preparation of transcription, which totals $10,351.78. 1 Amended Exhibit C contains invoices that provide a more detailed itemization and breaking out of costs, such as costs for the rough draft, exhibits, shipping, and processing, as required under L.R. 54-3.5(a). Case 5:16-cv-01824-RSWL-SP Document 301 Filed 02/08/19 Page 3 of 14 Page ID #:17795 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  EcoServices’ response to CAS’s objection 5: EcoServices agrees to withdraw charges for “real time” views of the transcription during the depositions. EcoServices has removed the total additional charges paid for “real time” views of the transcription during the depositions, which totals $5,111.90.  EcoServices’ response to CAS’s objection 6: EcoServices agrees to withdraw the cost for photocopying certain pages from a dictionary (Exhibit C, at 154-156, as originally filed). Based on EcoServices’ further investigation about this invoice, it does not appear that this photocopy was used at a deposition and made a part of a deposition transcript. Accordingly, EcoServices agrees to withdraw the cost of photocopying as reflected on this invoice: $76.20. EcoServices disagrees with CAS’s objection that invoices included in Exhibit C on pages 144, 146, 150, 159, 161, 164, 166, 170, 172, 175, and 177-79 are outside the scope of this L.R. L.R. 54-3.5(c) provides that “[t]he cost of copying or reproducing exhibits used at the deposition and made a part of the deposition transcript is taxable.” Itemized costs in each invoice identified by either “Exhibit” or “Exhibit Package” reflect the cost of copying or reproducing exhibits that were used at the deposition and made a part of the deposition transcript. Accordingly, the costs for “Exhibit” or “Exhibit Package” are taxable under this L.R.  EcoServices’ response to CAS’s objection 7: Amended Exhibit C provides more detailed invoices that show the total number of pages of the transcript and total cost based on the total number of pages of the transcript. Simply dividing the total cost by the total number of pages of the transcript provides the per-page cost of the transcript. Accordingly, CAS’s objection that none of EcoServices’ receipts identify the per-page rate is moot. For clarity, EcoServices disagrees that the cost per-page should be capped at the rate set by the Judicial Conference, which is currently $3.65/page for the original and $0.90/page for a first copy.2 As 2 https://www.uscourts.gov/services-forms/federal-court-reporting-program#rates Case 5:16-cv-01824-RSWL-SP Document 301 Filed 02/08/19 Page 4 of 14 Page ID #:17796 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 4 permitted by L.R. 54-3.5(a), EcoServices provides herein an explanation of why higher rates were reasonable under the circumstances. To help conserve the time and resources of the Clerk, EcoServices has performed the calculations for each of the deposition invoices submitted per witness and provides the per-page cost of each transcript below:  Mr. Kushnick (March 6, 2018 deposition) (Exhibit C, at 5): $4.35/page  Mr. Lettiere (Exhibit C, at 7): $4.35/page  Ms. Bennis (Exhibit C, at 9): $3.95/page (this rate is calculated using the non-expedited preparation of the transcription, $529.30)  Dr. Micklow (March 9, 2018 deposition) (Exhibit C, at 11): $4.45/page  Dr. Micklow (April 27, 2017 deposition) (Exhibit C, at 12): $5.90/page  Mr. Kushnick (May 3, 2017 deposition) (Exhibit C, at 14): $4.35/page  Mr. Asplund (Exhibit C, at 16): $4.35/page  Mr. Lee (Exhibit C, at 27): $5.95/page; hard copy: $0.79/page (Exhibit C, at 18)  Mr. Zuege (Exhibit C, at 19): $4.35/page  Mr. Lopez (Exhibit C, at 21): $4.35/page  Mr. Welch (Exhibit C, at 23): $4.35/page  Mr. Rice (Exhibit C, at 25): $4.35/page  Mr. Hoffman (Exhibit C, at 28): $5.95/page  Mr. Caban (Exhibit C, at 31): $5.95/page; hard copy: $0.79/page (Exhibit C, at 29)  Mr. Scanlon (Exhibit C, at 30): $5.95/page Case 5:16-cv-01824-RSWL-SP Document 301 Filed 02/08/19 Page 5 of 14 Page ID #:17797 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 5 As seen above, of the 15 depositions in this case, 8 of the depositions incurred a per-page rate of $4.35, only $0.70 higher than the rate set by the Judicial Conference; 1 of the depositions incurred a per-page rate merely $0.30 higher than the rate set by the Judicial Conference; 1 of the depositions (Dr. Micklow’s March 9, 2018 deposition) incurred a per-page rate of $4.45, only $0.80 higher than the rate set by the Judicial Conference; 1 of the depositions (Dr. Micklow’s April 27, 2017 deposition) incurred a per-page rate of $5.90, $2.25 higher than the rate set by the Judicial Conference; and the 4 remaining depositions incurred a per-page rate of $5.95, $2.30 higher than the rate set by the Judicial Conference. The costs incurred for hard copies of the depositions of Messrs. Lee and Caban each incurred a per- page rate below the rate set by the Judicial Conference. EcoServices believes that these slightly higher rates are reasonable under the circumstances for several reasons. First, over half of the number of depositions taken in this case incurred a higher rate of on average only $0.75. EcoServices believes that this higher cost is reasonable under the circumstances given that four of these depositions were of expert witnesses testifying about the complex technology at issue in this litigation or complicated monetary damages theories and analyses. Having to transcribe hours of testimony covering scientific terms and principles or complicated economic theories that may not be considered the subject of everyday conversation is no easy task for the court reporter. Second, most, if not all, of these depositions were taken in major metropolitan U.S. or Swedish cities and based on the per-page rates above that do not vary greatly from each other, EcoServices believes that these slightly higher rates are consistent with vendors in major metropolitan cities and thus, reasonable under the circumstances. Third, for the depositions that CAS had noticed during this case and was responsible for arranging a court reporter, it was necessary for EcoServices to obtain its own copies of these depositions. EcoServices did not have a say in which vendor CAS should use for their depositions. Nevertheless, EcoServices believes that these slightly Case 5:16-cv-01824-RSWL-SP Document 301 Filed 02/08/19 Page 6 of 14 Page ID #:17798 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 6 higher rates do not greatly differ from the rates of the vendors used by EcoServices for deposing CAS’s witnesses. For at least these reasons, EcoServices believes that these slightly higher rates were reasonable under the circumstances of this litigation. L.R. 54-3.7 Interpreter’s Fees (ECF No. 299-6: Exhibit D)  EcoServices’ response to CAS’s objection 8: Attached hereto is an amended Exhibit D that includes an invoice for oral translation services. This invoice was originally inadvertently included in Exhibit C. EcoServices agrees that invoices for document translation costs are not taxable under this L.R. EcoServices seeks costs for document translation services under L.R. 54-3.10(g), as explained herein. L.R. 54-3.8 Docket Fees (ECF No. 299-7: Exhibit E)  EcoServices’ response to CAS’s objection 9: EcoServices agrees to withdraw PACER fees. Attached hereto is an amended Exhibit E that does not include invoices for PACER fees. Amended Exhibit E includes documentation showing amounts that EcoServices believes are taxable under 28 U.S.C. § 1923. L.R. 54-3.10 Certification, Exemplification and Reproduction of Documents (ECF No. 299-8: Exhibit F)  EcoServices’ response to CAS’s objection 10: The parties disagree as to whether costs of e-discovery hosting services are taxable under this L.R. EcoServices believes that its costs paid to its e-discovery vendor, CS DISCO, Inc. (“DISCO”), are taxable under this rule in light of precedent from this district. CAS does not cite to any authority in support of its objection. During this litigation, counsel for EcoServices used DISCO for its ability to house electronically produced discovery by both parties and more importantly, to electronically prepare and produce documents responsive to the discovery requests propounded by CAS. In other words, DISCO was far from an idle database containing documents. Ultimately, EcoServices produced 20,802 pages (9,699 documents) of electronically stored information in response to CAS’s requests. CAS propounded upon Case 5:16-cv-01824-RSWL-SP Document 301 Filed 02/08/19 Page 7 of 14 Page ID #:17799 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 7 EcoServices 70 requests for the production of documents in addition to document requests in three subpoenas issued to third-parties that counsel for EcoServices also represented. The costs that EcoServices incurred for using DISCO were not accrued merely for the convenience of counsel for EcoServices, but were necessarily incurred in responding to CAS’s discovery requests and subpoenas. This district and courts within the Ninth Circuit have found such e-discovery costs recoverable. See Tibble v. Edison Int’l, No. CV-07-5359-SWV(AGRx), 2011 WL 3759927, at *7-8 (C.D. Cal. Aug. 22, 2011) (concluding that defendants’ e-discovery costs were reasonable and necessary to respond to plaintiffs’ 28 requests for production and implying that the complexity of electronic production may necessitate awarding additional costs not traditionally associated with the production of paper copies); Jardin v. DATAllegro, Inc., No. 08-CV-1462-IEG(WVG), 2011 WL 4835742, at *15 (S.D. Cal. Oct. 12, 2011) (finding that costs related to the production of electronic copies are taxable). Accordingly, the costs associated with using DISCO were necessarily incurred in responding to CAS’s discovery requests and subpoenas and thus, are taxable under this L.R.  EcoServices’ response to CAS’s objection 11: EcoServices withdraws the invoice on pages 236-237 of Exhibit F as originally filed. After further investigation by EcoServices, this invoice is not associated with this case. Accordingly, EcoServices does not include the total of this invoice, $621.94, in its calculation.3 CAS argues that the invoices on pages 290-293 of Exhibit F as originally filed do not comport with the specificity requirement under this L.R. EcoServices disagrees. Each of these invoices from Keystone show that distinct tasks were performed for documents that were used during trial, which was held from June 26, 2018 to July 2, 2018. The dates of these invoices fall squarely near or within the trial dates. As CAS points out in its objection at page 7, “Only costs 3 EcoServices also removes invoices from Mr. Kushnick detailing his expert witness services and expenses that were inadvertently originally included in Exhibit F. Case 5:16-cv-01824-RSWL-SP Document 301 Filed 02/08/19 Page 8 of 14 Page ID #:17800 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 8 associated with copying documents or reproducing other material for actual use in the case are allowed.” These invoices provide clear descriptions of the tasks performed for materials and documents that were used in the trial. Moreover, each of these Keystone invoices identifies the “File #/REF” number that matches the internal firm billing code assigned to this litigation. This is further supporting evidence that these distinct tasks and costs were associated with copying documents or reproducing material for actual use in this case. Accordingly and consistent with the language of this L.R., these costs that CAS takes issue with are taxable. As mentioned above, under L.R. 54-3.10(b), EcoServices seeks costs for videographer services used for depositions in this case. During the trial and with permission from the Court, both parties admitted into evidence videotaped deposition designations. The videotaped deposition designations were each an excerpted copy of the original full-length video. EcoServices believes that because of the original full-length videos, the jury had the benefit of seeing excerpts of various videotaped depositions, which were ultimately admitted into evidence during trial. Amended Exhibit F contains invoices showing itemized costs for videography services for the deposition designations that were admitted into evidence during trial. Accordingly, EcoServices believes that videography services are taxable under this rule. As mentioned previously, under L.R. 54-3.10(g), EcoServices seeks costs for document translation services. Amended Exhibit F contains invoices showing document translation costs. In response to CAS’s Request for Production No. 24, which requested “all documents relating to the prosecution of the patents-in-suit…or any foreign or international counterpart or related patent application, including but not limited to, correspondence documents…[,]” EcoServices necessarily incurred document translation costs for its foreign patent prosecution documents that were written in different foreign languages. Document translations were necessary and prudent to ensure that privileged documents did not get produced to counsel for Case 5:16-cv-01824-RSWL-SP Document 301 Filed 02/08/19 Page 9 of 14 Page ID #:17801 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 9 CAS. Given the breadth of CAS’s requests, it was likely that “correspondence documents” related to the prosecution of EcoServices’ foreign patents and applications would contain attorney-client communications. Accordingly, EcoServices believes that document translations were required to respond to CAS’s document request and necessary under these circumstances and thus, are taxable under this L.R. L.R. 54-3.12 Other Costs (ECF No. 299-9: Exhibit G)  EcoServices’ response to CAS’s objection 12: CAS argues that an order, other than the Court’s October 26, 2018 order granting EcoServices (the prevailing party), among other things, costs, should have been attached by EcoServices to its Application to recover other costs, which consist of the physical preparation of visual aids (i.e., demonstrative slides and video deposition designations of witnesses) that were used at trial. There is no dispute that EcoServices timely filed its Application. EcoServices disagrees with CAS’s argument and interpretation of this L.R. in view of precedent that explicitly rebuts CAS’s objection. In Enovsys LLC v. AT&T Mobility LLC, No. CV-11-5210-SS, 2016 U.S. Dist. LEXIS 187800, at *19 (C.D. Cal. June 15, 2016), the plaintiff, like CAS, “has not identified any Central District case in which costs of visual aids were refused because the prevailing party failed to obtain, and attach, a court order awarding such costs within fourteen days of entry of judgment.” The Enovsys court specifically addressed, in relevant part below, the absurdity of the plaintiff’s interpretation of this L.R. that states “Upon order of the Court” and Form CV-59, which directs the applicant to “attach [a] court order”: The Court recognizes that Form CV-59 instructs parties to “attach [a] court order” to support a request for costs of visual aids pursuant to Local Rule 54-3.12. However, Enovsys’s interpretation of Form CV-59 would appear in most cases to demand the impossible because the time necessary to meet and confer and to file and hear a noticed motion under the Court’s Local Rules exceeds fourteen days. Case 5:16-cv-01824-RSWL-SP Document 301 Filed 02/08/19 Page 10 of 14 Page ID #:17802 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 10 … Because AT&T filed its Application to the Clerk to Tax Costs on the required Form CV-59 within the fourteen-day deadline set by Local Rule 54-2.1, it adequately put Enovsys on notice of its intention to seek recovery of costs for visual aids. The Application, which Enovsys does not dispute was timely, documented costs for the very same visual aids at issue… … Furthermore, even if the Local Rules required a prevailing party to submit a court order authorizing visual aid costs concurrently with an Application to Tax Costs, it is well recognized that “the trial court may excuse compliance with its own local rules.” U.S. v. Garcia, 448 F.2d 395, 396 (9th Cir. 1971). (emphasis in original). 2016 U.S. Dist. LEXIS 187800, at *19-21. Accordingly, under Enovsys, EcoServices should not be refused other costs under this L.R. because a separate order allowing for other costs is not required to be attached to its Application. On the merits, EcoServices’ costs incurred for the production of the visual aids used at trial do not amount to “intellectual effort,” which may not be taxed under this L.R. Enovsys is also instructive on this issue. The court in Enovsys found that entries for “communication design” and “management activities” that reflect work done on the preparation of visual aids are an “integral part of the production process” and “are properly eligible for reimbursement.” 2016 U.S. Dist. LEXIS 187800, at *21-22. Similar to the facts in Enovsys, the invoices that EcoServices has submitted in Exhibit G list entries for Messrs. Brooks and Zang that show their time was devoted to the physical preparation of the visual aids, not the intellectual effort involved in their production. See, e.g., Exhibit G, at 414 (describing activities such as “download,” “upload,” “create,” “add,” and “edit”); id. At 416 (describing activities such as “graphics development/production,” “create”). Mr. Brooks’ attendance at witness preparation was an integral part of the production process because he would edit in real-time, at the attorney’s instruction, demonstrative slides that were being Case 5:16-cv-01824-RSWL-SP Document 301 Filed 02/08/19 Page 11 of 14 Page ID #:17803 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 11 used with that witness. See Enovsys, 2016 U.S. Dist. LEXIS 187800, at *21 (finding that a billing designation to describe graphic-development work performed for AT&T “reflects work on the production of visual aids, and not the creation of the visual aids’ substantive content, and is therefore reimbursable.”). Accordingly, EcoServices’ visual aids costs are properly eligible for reimbursement and taxable under this L.R.4 CONCLUSION For the aforementioned reasons, EcoServices respectfully requests that the Clerk file a bill of costs reflecting the total amount of $115,988.35 as being taxable under L.R. 54-3. Dated: February 8, 2019 Respectfully submitted, By: /s/ Natasha E. Daughtrey Ronald J. Pabis rpabis@goodwinlaw.com Stephen K. Shahida sshahida@goodwinlaw.com Patrick J McCarthy pmccarthy@goodwinlaw.com Myomi Tse Coad mcoad@goodwinlaw.com GOODWIN PROCTER LLP 901 New York Avenue NW Washington, DC 20001 Tel.: +1 202 346 4000 Fax.: +1 202 346 4444 Natasha E. Daughtrey ndaughtrey@goodwinlaw.com GOODWIN PROCTER LLP 601 S Figueroa Street 4 EcoServices will not seek to tax the cost of Mr. Brooks’ travel expenses listed in his invoice. Accordingly, $1,400 is not included in EcoServices’ total for this L.R. Case 5:16-cv-01824-RSWL-SP Document 301 Filed 02/08/19 Page 12 of 14 Page ID #:17804 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 12 41st Floor Los Angeles, California 90017 Tel.: +1 213 426 2500 Fax.: +1 213 623 1673 Attorneys for Plaintiff: ECOSERVICES, LLC Case 5:16-cv-01824-RSWL-SP Document 301 Filed 02/08/19 Page 13 of 14 Page ID #:17805 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 13 CERTIFICATE OF SERVICE I, Natasha E. Daughtrey, an attorney, hereby certify that on February 8, 2019, I caused a complete and accurate copy of the foregoing to be served via this Court’s ECM/ECF notification system, which will serve electronically to all participants in the case. /s/ Natasha E. Daughtrey Natasha E. Daughtrey Case 5:16-cv-01824-RSWL-SP Document 301 Filed 02/08/19 Page 14 of 14 Page ID #:17806