Commercial Litigation and Arbitration

Taxation of Costs: Video Deposition Editing, In-Court Technical Support, Equipment Rental Not Taxable under § 1920 (Circuit Split, New S.Ct. Case Unfavorable) — Demonstrative Boards Not Necessary

Fowler v. Cal. Hwy. Patrol, 2014 U.S. Dist. LEXIS 112540 (N.D. Cal. Aug. 13, 2014):

Defendants move the Court to review and tax two discrete costs disallowed by the Clerk: (1) exemplification costs related to video presentations used at trial and (2) fees for [*6]  deposition transcripts. Based on a de novo review of these challenged categories of costs, the Clerk shall tax costs consistent with the following discussion.

I. Reproduction and Exemplification Costs

Defendants claimed $15,833.78 in costs for "fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case." See Docket No. 116 & Osgood Decl. at 5-6, Docket No. 116-1. The Clerk disallowed $15,682.38 as outside of the ambit of allowable costs for reproduction and exemplification. See Docket No. 119. Defendants seek review of this disallowance. Upon de novo review of costs sought for reproduction and exemplification, the Court finds as follows.

Defendants' request for $406.00 in copying fees for records and documents produced in response to discovery requests are allowable reproduction and exemplification costs. See 28 U.S.C. § 1920(4) & Civ. L.R. 54-3(d)(2).

Defendants' request for $590.60 in printing and copying costs for exhibits and non-routine materials for use at trial are also allowable. See Civ. L.R. 54-3(d)(4).

Defendants' claim for $306.68 for foam-core board demonstratives and enlargements is disallowed. "The cost of preparing . . . visual aids to be used [*7]  as exhibits is allowable if such exhibits are reasonably necessary to assist the jury or the Court in understanding the issues at the trial." Civ. L.R. 54-3(d)(5) (emphasis added). The graphics displayed on the foam boards consisted of a chart and a photograph of the side of the road in which the incident occurred. This content could have also been displayed electronically or printed and distributed to the jury and Court, and thus these demonstratives were not reasonably necessary to assist in understanding issues at trial. The Court declines to award this cost.

Defendants assert that the remaining $14,530.50 fees for "technical support, video creation and editing, and equipment rental relating to the presentation of evidence at trial" are taxable reproduction and exemplification costs. Osgood Decl. at 5. Defendants contend these services were necessary because the courtroom in which the trial took place did not have its own equipment to present the audio and video recordings which were central to the case, necessitating Defendants to bring their own. See id. at 6. Plaintiff challenges these costs as excessive and outside of the ambit of "exemplification."

Whether -- and to what extent -- the use of technology [*8]  at trial is taxable as a prevailing party cost under 28 U.S.C. § 1920 is an evolving issue. Courts have recognized that a circuit split exists "concerning how broad[ly] to construe the term 'exemplification' in § 1920(4) -- some circuits apply the 'broad' definition and some apply the 'narrow' definition." Transamerica Life Ins. Co. v. Lincoln Nat. Life Ins. Co., No. C06-110-MWB, 2009 WL 2584838, at *8 (N.D. Iowa Aug. 17, 2009) (citation omitted); see also Country Vintner of N. Carolina, LLC v. E. & J. Gallo Winery, Inc., 718 F.3d 249, 262 (4th Cir. 2013) (noting circuit split). For example, the Seventh Circuit has embraced a broad definition of exemplification when it held that "[s]o long as the means of presentation furthers the illustrative purpose of an exhibit, we believe it is potentially compensable as exemplification. This approach allows appropriate room for the more sophisticated types of multi-media presentations made possible by technological advances." Cefalu v. Vill. of Elk Grove, 211 F.3d 416, 428 (7th Cir. 2000); see also id. at 427 (citing Merriam-Webster's Collegiate Dictionary 406 (10th ed. 1993) ("exemplification" commonly signifies "the act of illustration by example, a connotation broad enough to include a wide variety of exhibits and demonstrative aids.")). In contrast, the Eleventh Circuit has

   conclude[d] that the term 'exemplification' imports the legal meaning of '[a]n official transcript of a public record, authenticated as a true [*9]  copy for use as evidence,' Black's Law Dictionary 593 (7th ed. 1999), and not the broader and common connotation that includes 'a showing or illustrating by example.' Webster's Third New International Dictionary 795 (1981).

Arcadian Fertilizer, L.P. v. MPW Indus. Servs., Inc., 249 F.3d 1293, 1297 (11th Cir. 2001) (finding videotape exhibits and computer animation are neither copies of paper nor exemplifications within the meaning of § 1920(4)). The parties do not cite, and the Court has not been able to find, any controlling Ninth Circuit authority directly addressing this question.

The Court is guided, however, by the Supreme Court's recent statements emphasizing that "taxable costs are limited by statute and are modest in scope." Taniguchi v. Kan Pac. Saipan, Ltd.,     U.S.    , 132 S. Ct. 1997, 2006 (2012) (concluding that § 1920(6) -- which authorizes the district court to compensate a party for the expense of an interpreter -- does not cover the cost of translating documents because the plain meaning of the word "interpreter" includes oral, not written, translations). "Taxable costs are limited to relatively minor, incidental expenses . . . [and] are a fraction of the nontaxable expenses borne by litigants for attorneys, experts, consultants, and investigators." Id. In light of Taniguchi, the Ninth Circuit "construe[s] § 1920 narrowly." Kalitta Air L.L.C. v. Cent. Texas Airborne Sys. Inc., 741 F.3d 955, 958 (9th Cir. 2013).

In Kalitta, the court held that the cost of [*10]  deposition editing is not taxable "because it is a service in excess of the cost of making copies of the videotape," and that synchronizing deposition videotapes with their transcripts, "while convenient, was not an act of copying or exemplification and was not truly necessary for trial." Id. at 959 (emphasis in original). With these authorities in mind, and construing § 1920 narrowly, the Court disallows Defendants' costs related to video and audio presentation at trial.

First, as a preliminary matter, the evidence submitted by Defendants in support of this claimed cost is inadequate. The "On the Record" vendor invoice, see Osgood Decl. at 63-64, does not comport with Civil Local Rule 54-1(a), which requires, inter alia, that each bill of cost "separately and specifically identify each item of taxable cost claimed," along with "[a]ppropriate documentation to support each item claimed." Civ. L.R. 54-1(a). Defendants' conclusion that presentation of video evidence was necessary at trial does not mean ipso facto that the vast majority of unspecified related costs associated with the hired technology vendor and equipment rentals are therefore also taxable costs.

The original total invoice amount for On the Record's services is $18,887.28. Defendants [*11]  subtracted $4,356.78 from this invoice "as costs of meetings, travel, conference calls, and other matters not directly related to the creation and presentation of video and audio evidence at trial." Osgood Decl. at 6. But the Court cannot discern which line items were specifically subtracted as "not directly related" to the creation and presentation of video and audio evidence at trial. Moreover, it seems clear that certain claimed costs would not be allowable under § 1920. Defendants' inclusion of $843 for "Video Depo/transcript Synchronization from VHS/DVD" is not a taxable cost. See Kalitta, 741 F.3d at 959. It is unclear whether "Video Clip Editing from Synchronized Video" and "Video Editing - Non Linear" relate to the clearly unallowable costs associated with deposition video synchronization, so ambiguity again renders it impossible for the Court to determine whether these line items are taxable. Thus, the Court cannot conclude what portion of these services throughout trial comprised the "cost of preparing charts, diagrams, videotapes, and other visual aids to be used as exhibits." Civ. L. R. 54-3(d)(5) (emphasis added). Defendants' video presentation and related costs are thus disallowed on the ground of inadequate documentation [*12]  and explanation.

Second, the Court concludes that in-court technical support and equipment rental fees are disallowed as costs because they are not acts of copying or exemplification, as contemplated by § 1920. Defendants cite pre-Taniguchi/Kalitta authority for the proposition that in-court technician time and associated equipment costs are permitted as exemplification costs. See Shum, 682 F. Supp. 2d at 1000 (allowing in-court technical support and equipment rental fees as costs). However, courts in this district also arrived at the contrary conclusion. See, e.g., Am. Color Graphics, Inc. v. Travelers Prop. Cas. Ins. Co., No. C04-3518SBA, 2007 WL 832935, at * 3 (N.D. Cal. Mar. 19, 2007) ("Fees for a video technician does not easily fit within any of the enumerated categories [of 28 U.S.C. § 1920] and therefore the fees for the video technician will not be allowed."). In light of recent Supreme Court and Ninth Circuit guidance, and the proper, narrow construction of § 1920, the Court finds that Defendants' in-court technical support and equipment rental fees are not properly taxed as costs because they are not, by their own terms, acts of copying or exemplification. See Behlman v. Century Sur. Co., No. 4:12-CV-1567 JAR, 2014 WL 2930658, at * 1 (E.D. Mo. June 27, 2014) (disallowing the [*13]  taxation of costs for a trial technician as outside of the ambit of § 1920).

Furthermore, even if technician time and equipment rental fees were taxable, here, the costs were excessive, as the total amount charged was not truly necessary for trial. See Kalitta, 741 F.3d at 959. The trial in this case did not involve patents or complicated technical issues; it was a § 1983 excessive force case with a relatively limited factual scope. Defendants spent $6,320 for 32.1 hours of in-court video technician time at a rate of $200 per hour. The audio and video excerpts (such as the MVARS video recording of the incident) that were played during the course of the trial totaled no more than a few hours of airtime -- nowhere near the 32.1 hours that the technician sat in the courtroom. Similarly, while Defendants argue that Shum, 682 F. Supp. 2d at 1000, supports the taxation of the cost of equipment rentals for the two weeks of trial, for a total of $6,350,1 nothing in the narrowly construed provisions of § 1920 indicates that the deployment of state-of-the-art technology to present evidence to the jury and Court is properly construed as a necessary fee for an act of copying or exemplification under § 1920. Thus, Defendants are not entitled to their fees for in-court technical [*14]  support, equipment rental, and other related services as taxable costs under § 1920.

1   The equipment includes the following: Hi-Lumens XGALCD Projector (court); Hi-Lumens XGALCD Projector (office); Multimedia Presentation System; Multimedia Presentation System (Backup); Elmo Visual Presenter (Digital); High Speed Color Duplex Scanner; Laser Printer with additional RAM added; 8 Foot Projection Screen; Speakers; 6 or 8-Way Digital Distribution Amplifier; 4 in 1 out Digital Video Switcher; 4-Way Digital Distribution Amplifier; 2-Way Digital Distribution Amplifier; 17" Flat Panel XGA LCD Monitor; and five (5) 17" Flat Panel XGA LCD Monitors; and XGA cabling, extension cords & power strips. See Osgood Decl. at 63-64.

Accordingly, the Clerk shall tax costs of $996.60 with respect to fees for printing, exemplification, and copying.

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