1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SAN JOAQUIN COUNTY EMPLOYEES’ No. 2:18-cv-02042-JAM-CKD

RETIREMENT ASSOCIATION,

12 Plaintiff, 13 ORDER GRANTING IN PART AND v. DENYING IN PART DEFENDANT’S BILL 14 OF COSTS

TRAVELERS CASUALTY AND SURETY

15 COMPANY OF AMERICA, 16 Defendant. 17 18 San Joaquin County Employee’s Retirement Association 19 (“SJCERA” or “Plaintiff”) filed a lawsuit against Travelers 20 Casualty and Surety Company of America (“Travelers” or 21 “Defendant”), for failure to defend SJCERA in a separate 22 underlying action despite purchasing a fiduciary liability 23 insurance (“Policy”). First Am. Compl. (“FAC”), ECF No. 10. 24 Both Plaintiff and Defendant filed Motions for Summary Judgment 25 seeking to adjudicate the claims in their favor. See Plf’s Mot. 26 for Summ. J. (“Mot.”), ECF No. 21-1; Def’s Cross-Mot. for Summ. 27 J. (“Cross-Mot.”), ECF No. 24-1. The Court granted Defendant’s 28 cross-motion for summary judgment and denied Plaintiff’s motion 1 for summary judgment, thereby adjudicating the suit in 2 Defendant’s favor. See December 10, 2019 Minutes for Motion 3 Hearing, ECF No. 33; see also January 22, 2020 Order (“Order”), 4 ECF No. 44. 5 As the prevailing party in this action, Defendant seeks to 6 recover costs totaling $13,486.62. Bill of Costs, ECF No. 37 at 7 1. Plaintiff opposes on the grounds that the requested costs are 8 not recoverable under 28 U.S.C. § 1920, Federal Rule of Civil 9 Procedure 54(d), and Local Rule 292(f) of the Eastern District of 10 California. Objections to Bill of Costs (“Objections”), ECF No. 11 38 at 2. For the reasons discussed below, the Court GRANTS IN 12 PART and DENIES IN PART Defendant’s Bill of Costs.1 13 14 I. OPINION 15 A. Legal Standard 16 Under Federal Rule of Federal Procedure 54(d)(1), the 17 prevailing party is entitled to taxable costs “other than 18 attorney’s fees.” Fed. R. Civ. Proc. 54(d)(1). Section 1920 19 enumerates the “other” taxable costs that a federal court may 20 award the prevailing party. 28 U.S.C. § 1920(1)-(6). Eastern 21 District of California Local Rule 292(f) further elaborates on 22 which items are taxable costs in this district. E.D. Cal. L.R. 23 292(f). Items not listed in Section 1920, can only be 24 recoverable under “explicit statutory or contractual 25 authorization.” Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 26

27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for March 10, 2020. 1 U.S. 437, 445 (1987). 2 The prevailing party must serve and file a bill of costs 3 conforming with 28 U.S.C § 1924, within fourteen (14) days after 4 entry of judgment. E.D. Cal. L.R. 292(b). The party against 5 whom costs are claimed must file any objections within seven (7) 6 days from date of service. Id. at 292(c). 7 District courts have discretion in determining whether and 8 to what extent prevailing parties may be awarded costs. Ass’n 9 of Mexican-Am. Educators v. State of California, 231 F.3d 572, 10 591 (9th Cir. 2000) (en banc). But this discretion “is not 11 unlimited.” Id. “A district court must specify reasons for its 12 refusal to award costs.” Id. (internal quotation marks and 13 citation omitted). District courts must “explain why a case is 14 not ordinary and why, in the circumstances, it would be 15 inappropriate or inequitable to award costs.” Id. at 593 16 (internal quotations marks and citation omitted). 17 SJCERA misleadingly states “[t]he burden is on the 18 prevailing plaintiffs to establish the amount of compensable 19 costs and expenses to which they are entitled.” Objections at 1 20 (citing English v. Colorado Department of Corrections, 248 F. 3d 21 1002, 1012-1013 (10th Cir. 2001)). While the prevailing party 22 must show the costs are allowable by law and were necessarily 23 incurred, SCJERA fails to acknowledge that “Rule 54(d)(1) 24 creates a presumption in favor of awarding costs to the 25 prevailing party.” Ass’n of Mexican-Am. Educators, 231 F.3d at 26 591. Therefore, the losing party bears the burden of overcoming 27 this presumption by providing the Court with sufficiently 28 persuasive reasons to deny costs. Jones v. County of El Dorado, 1 No. 2:17-cv-02128-JAM-KJN, 2020 WL 363916, at *1 (E.D. Cal Jan. 2 22, 2020). 3 B. Analysis 4 Travelers claims $13,486.62 in costs. Bill of Costs at 1. 5 SJCERA objects to (1) $6,432.00 costs incurred by Travelers for 6 depositions “unrelated to the preparation of the transcript” and 7 (2) to $105.00 in filing fees by “One Legal, LLC.” Objections 8 at 1-3. Because SCJERA does not otherwise object to Travelers’ 9 Bill of Costs, the Court’s consideration will focus only on 10 these two disputed costs. 11 1. Video Deposition Costs 12 Section 1920 allows the Court to tax as costs “fees for 13 printed or electronically recorded transcripts necessarily 14 obtained for use in the case.” 18 U.S.C § 1920(2); see also 15 E.D. Cal. L.R. 292(f)(3). “To recover, the prevailing party 16 must demonstrate that a videotaped copy of the deposition was 17 necessary.” Sullivan v. Costco Wholesale Corporation, No. 1:17- 18 cv-00959, 2019 WL 1168531, at *2 (E.D. Cal. March 13, 2019). 19 SJCERA objects to a number of Travelers’ costs associated 20 with video depositions on the grounds that they are “not 21 reasonably necessary” for the preparation of the transcript. 22 Objections at 2. Specifically, SJCERA objects to the following 23 costs, totaling $6,432.00:

24 • $188.30 for Exhibit Management and Delivery Fee as to the Chopova Deposition. See Decl. of Lau in 25 Support of Bill of Costs (“Lau Decl.”), ECF No. 37- 1, Exh. E. 26 • $237.40 for Exhibit Management and Veritext Exhibit 27 Package as to the Travelers 30(b)(6) Deposition. See Id. at Exh. G. 28 1 • $198.40 for Exhibit Management and Veritext Exhibit Package as to the Ziemann Deposition. See Id. at 2 Exh. I.

3 • $2,101.61 for Schick Deposition Appearance Fee, Exhibits with Tabs, Exhibits Color, Condensed 4 Transcript, Digital Transcript, Processing and Compliance, Realtime Feed, Realtime Hook-Up, 5 Equipment Rental, Federal Express Costs, Videographer Time, and Handling Fee. See Id. at 6 Exh. F.

7 • $1,811.46 for SJCERA 30(b)(6) Deposition Appearance Fee, Exhibits with Tabs, Exhibits Color, Condensed 8 Transcript, Digital Transcript, Processing and Compliance, Realtime Feed, Realtime Hook-Up, 9 Equipment Rental, Federal Express Costs, Videographer Time, and Handling Fee. See Id. at 10 Exh. J.

11 • $2,093.23 for Goracy Deposition Appearance Fee, Exhibits with Tabs, Exhibits Color, Condensed 12 Transcript, Digital Transcript, Processing and Compliance, Realtime Feed, Realtime Hook-Up, 13 Equipment Rental, Federal Express Costs, Videographer Time, and Handling Fee. See Id. at 14 Exh. K.

15 Objections at 3. 16 For each of these costs, Travelers asserts “[t]his cost 17 . . . has been necessarily incurred in the case and is allowable 18 by law.” Lau Decl. ¶¶ 7-9, 11-13. But Plaintiff otherwise 19 fails to demonstrate these costs were actually necessarily 20 incurred. Courts in this District have declined to award costs 21 when prevailing parties have failed to make such a showing. See 22 e.g., Stokes v. City of Visalia, 2018 WL 4030732, at *9 (E.D. 23 Cal. Aug. 21, 2018) (Declining to award video recording costs 24 because defendant failed to show they were “necessarily obtained 25 for use in this trial, rather than merely for convenience of 26 counsel.”) (internal quotations omitted). This Court likewise 27 finds Plaintiff’s failure to make such a requisite showing is 28 fatal to the recovery of his video recording costs. 1 Further, as SCJERA points out, many courts have found these 2 extra services not “necessary or authorized by federal law.” 3 Objections at 2. For instance, costs for “Real-time,” an 4 optional add-on feature for a deposing party to view and 5 annotate transcripts live during a testimony, have been denied 6 for being “not necessary.” See Phoenix Technologies Ltd. v. 7 VMWare, Inc., No. 15-cv-01414-HSG, 2018 WL 4700347, at *3 (N.D. 8 Cal. Sept. 30, 2018); see also TransPerfect Global, Inc. v. 9 MotionPoint Corp., No. C-10-02590, 2014 WL 1364792, at *4 (N.D. 10 Cal. Sept. 30, 2018) (Declining to award “Real-Time” costs for 11 the same reason). The Court thus sustains SJCERA’s objections 12 to the following itemized charges as unnecessary: “Exhibits with 13 Tabs,” “Exhibits with Color,” “Processing and Compliance,” 14 “Real-Time Feed,” “Real-time Hookup,” “Equipment Rental,” 15 “Videographer” fees, and “Onsite Document Copying.” 16 In sum, the Court reduces Travelers’ “fees for printed or 17 electronically recorded transcripts” from $11,701.20 to 18 $5,269.20. 19 2. “Filing Fees” 20 SJCERA also objects to the “area surcharge” and “service 21 charge” reflected in the “filing fees” invoices by “One Legal 22 LLC.” Objections at 3. These fees amount to $105.00 of the 23 $595.00 in “filing fees” incurred by Travelers.” See Bill of 24 Costs at 1; see also Lau Decl. Exhs. B-C. 25 Section 1920 allows a prevailing party to recover costs for 26 fees to the court clerk, which permits recovery of filing fees. 27 See 28 U.S.C. § 1920(1). However, SJCERA objects on the grounds 28 that these are not actually “filing fees,” but rather “services WwOAOW 2.1L0°UV VEUtTO VAAIVE WINE MYVUULLIOCEIL ore PHO Uti Lily raye i vil

1 | paid by Travelers for its own convenience.” Id. SJCERA argues 2 | these “service fees” are therefore not recoverable by law. Id. 3 Indeed, “One Legal, LLC” is an “online litigation support” 4 platform that allows attorneys to “file court documents ... 5 | without leaving [their] desk.” See onelegal.com. As such, One 6 Legal charges “service charges” on top of the actual court filing 7 fee, and “area surcharges” based on the accessibility of the 8 courthouse location. See Id. In essence, these fees are charged 9 for the convenience of having “One Legal” file the documents on 10 Travelers behalf. This is made clear in a “One Legal” invoice, 11 which attaches a separate “Stockton Superior Court” receipt for 12 proof of the $435.00 in court filing fees. Lau Decl., Exh. B. 13 The other charges do not have attached receipts proving they were 14 charged by the clerk of the court. See Id. These convenience 15 charges are therefore not recoverable under Section 1920. 16 | Accordingly, the Court reduces Travelers’ filing fee costs from 17 $595.00 to $490.00. 18 19 Il. ORDER 20 For the reasons set forth above, the Court GRANTS IN PART 21 and DENIES IN PART Defendant’s Bill of Costs and awards Defendant 22 $6,949.62 in taxable costs. 23 IT IS SO ORDERED. 24 Dated: April 14, 2020 25 he Me 26 teiren staves odermacr 7008 27 28