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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

10 WILLIAM DEREK GRASTY, No. 2:18–cv–3242–KJN (PS) 11 Plaintiff, ORDER ON BILL OF COSTS 12 v. (ECF Nos. 46, 47) 13

SAN JUAN USD,

14 Defendant. 15 16 This case concerns defendant’s alleged age discrimination against plaintiff in failing to 17 hire him for a position.1 (See ECF No. 21.) The Court granted defendants’ motion for summary 18 judgment, entered judgment in favor of defendants, and ordered the case closed. (ECF No. 44.) 19 On February 18, 2020, defendants submitted a bill of costs. (ECF No. 46.) On March 2, 2020, 20 plaintiff filed objections to certain of those costs; defendants opposed the objections, and plaintiff 21 replied. (ECF Nos. 47, 48, 49.) For the reasons stated below, plaintiff’s objections are overruled. 22 Defendants first note, correctly, that plaintiff’s objections were untimely. Local Rule 23 292(c) states that “[t]he party against whom costs are claimed may, within seven (7) days from 24 date of service, file specific objections to claimed items with a statement of grounds for 25 objection.” Here, plaintiff’s objections were filed more than seven days after defendants 26 requested costs. Nevertheless, the court reviews plaintiff’s objections. Cf. Herrera v. Redding, 27 1 The parties consented to the jurisdiction of the Magistrate Judge for all purposes, under 28 28 U.S.C. § 636(a). (See ECF Nos. 16, 20.) 1 2019 WL 5959673, at *2 (E.D. Cal. Nov. 13, 2019, O’Neill, C.J.) (“Plaintiff failed to file 2 objections to Defendant’s bill of costs or file a motion for review by the Court within seven days 3 after costs were taxed. Nevertheless, the Court will consider the merits of Plaintiff’s motion for 4 reconsideration.”); Bradley v. Cty. of Sacramento Dep't of Human Assistance of N. California 5 Welfare Div., 2019 WL 1243720, at *1 (E.D. Cal. Mar. 18, 2019, Nunley, J.) (same); Bryant v. 6 Gallagher, 2017 WL 2671013, at *1 (E.D. Cal. June 21, 2017, McAuliffe, M.J.) (same); Durand 7 v. Stephenson, 2013 WL 2190165, at *1 (E.D. Cal. May 20, 2013, Mendez, J.) (finding excusable 8 neglect in reviewing objection to costs on the merits); Osei v. GMAC Mortg., 2010 WL 2035697, 9 at *1 (E.D. Cal. May 20, 2010, Ishii, C.J.) (examining costs on the merits despite both parties’ 10 failure to follow the local rules regarding timeliness). 11 Plaintiff’s objections are faulty on the merits. First, plaintiff disputes a $320 fee for video 12 recording of the deposition, arguing this cost is not allowed under 28 U.S.C. § 1920 because it is 13 not for “printed or electronically recorded transcripts necessarily obtained for use in the case.” 14 (ECF No. 47 at 1:22-27.) It is true that this court has previously found that the cost of 15 videotaping depositions falls outside the scope of Section 1920(2)—where the party seeking costs 16 fails to explain the need to video the deposition. Weco Supply Co. v. Sherwin-Williams Co., 17 2013 WL 56639, at *5 (E.D. Cal. Jan. 3, 2013) (“To recover, the prevailing party must 18 demonstrate that a videotaped copy of the deposition was necessary.”); see also, e.g., Pruitt v. 19 Genentech, Inc., 2019 WL 4034480 (E.D. Cal. Aug. 27, 2019, Mendez, J.) (“Pruitt did not 20 explain why duplication of these deposition costs was necessary and absent such an explanation 21 he is not entitled to recover this cost.”); Stokes v. City of Visalia, 2018 WL 4030732 (E.D. Cal. 22 Aug. 20, 2018, Boone, M.J.) (same). Here, defendant maintains that because plaintiff’s case 23 rested on his testimony that he was discriminated against by members of the district, a video was 24 needed in order analyze plaintiff’s “credibility, demeanor, and ability as a witness.” (ECF No. 25 48.) The court finds explanation sufficient, and the costs awardable. 26 Second, plaintiff contends that defendants’ request for approximately $1200 for the 200- 27 page printed transcript is unwarranted, given that defendants only used 31 pages in its summary 28 judgment motion. Plaintiff thus argues defendants should only be awarded 15% of the total cost 1 | forthe transcript. Discounting costs on this basis would require opposing counsel to pre-analyze 2 | the issues raised in plaintiff's deposition, then inform the transcription company to only generate 3 | the pages need. Neither case law nor simple logic supports such an argument. Fed. R. Civ. P. 4 | 54(d)(1) (‘Unless a federal statute, these rules, or a court order provides otherwise, costs—other 5 | than attorney's fees—should be allowed to the prevailing party.”); see also U.S. Fidelity & Guar. 6 | Co. v. Lee Investments LLC, 2010 WL 3037500 (E.D. Cal. Aug 2, 2010, Wanger, J.) (allowing 7 | cost of certain depositions even though they were for investigatory purposes only and not used in 8 || trial); McGuigan v. CAE Link Corp., 155 F.R.D. 31 (N.D.N.Y. 1994) (“[T]hat some portions of 9 | the depositions were not presented at trial does not make them ‘unnecessary.””). 10 Third, plaintiff simply states, without argument that the approximately $1200 for record 11 subpoenas are not allowed under the statute. Conversely, defendants argue the fees for the 12 || records are warranted under subsection 4, as a “copies of any materials where the copies are 13 || necessarily obtained for use in the case.” 28 U.S.C. § 1920(4). Defendants argue: 14 The District subpoenaed the current and former employers of William Derek Grasty. It was necessary for the District to subpoena 15 these records to seek out potential witnesses, documents, and information necessary to evaluate the merits of Plaintiff's 16 employment discrimination claims. Without these documents, the District would be unable to adequately defend against Plaintiff's 17 employment discrimination claims. 18 | The court finds defendants’ argument persuasive. See, e.g., Zurich American Insurance Compan 19 | of Illinois v. Accuire, LLC, 2019 WL 6840422 (E.D. Cal. Feb. 16, 2019, Mendez, J.) (allowing 20 | subpoena fees); Daniel v. Ford Motor Company, 2018 WL 1960653 (E.D. Cal. Feb. 16, 2018, 21 || Shubb, J.) (‘[SJubpoenas were reasonable and necessary in light of the facts known at the time of 22 || service.”); Fay v. Fay, 2015 WL 7271713 (Nov. 17, 2015, Ishii, J.) (12 records subpoenas taxed). 23 Accordingly, it is HEREBY ORDERED that: 24 1. Plaintiff's objections to defendants’ bill of costs are OVERRULED; and 25 2. The Clerk of the Court is directed to tax costs as allowed by statute. 26 | Dated: April 7, 2020 27 Zk’ af gras.3242 Pec Ahern 28 KENDALL J. NE 3 UNITED STATES MAGISTRATE JUDGE