Judge Robinson Partially Grants Request for Costs
August 18, 2016
Publication| Intellectual Property
In Apeldyn Corp. v. Sony Corp. and Apeldyn Corp. v. Samsung Electronics Co., C.A. Nos. 11-440-SLR/SRF and 11-581-SLR/SRF (D. Del. July 27, 2016), Judge Robinson granted in part the defendants’ motion to review the clerk’s taxation of costs, awarding $28,296.38 in costs for depositions and electronic discovery.
Under Section 1920(2), the District of Delaware Local Rule regarding costs, and Third Circuit precedent, the Court determined that costs should be reimbursed for three depositions necessarily obtained and substantially used in the case to resolve a material issue. Judge Robinson explained that the depositions were cited as important considerations in granting summary judgment for the defendants, even though the Court cited only the most critical pages of the depositions in the summary judgment decision. But Judge Robinson denied the defendants’ request for reimbursement of the costs of videotaping the deposition of an expert, as the video was not used in connection with motion practice and the defendants would likely have required the expert to testify live at trial.
In evaluating the defendants’ reimbursement request for “exemplification and the costs of making copies” under Section 1920(4) and for formatting of electronic documents for production (the “functional equivalent” of making copies under Third Circuit precedent), Judge Robinson stated that costs for Bates labeling (a “real-world necessity”) should be recoverable, but not costs for confidentiality stamping or for conversion of electronic documents to color image files. But because of inconsistencies in the defendants’ invoices, the practical difficulty of determining the number of color documents produced and apportioning Bates labeling costs, as well as the defendants’ decision to “oppose an early resolution,” Judge Robinson awarded 25 percent of the sum sought for copying costs. In total, the Court awarded the defendants $28,296.38.
Key Points: Throughout the order Judge Robinson emphasized the highly discretionary nature of a costs inquiry, noting that the Court could choose not to award costs at all. When reviewing other decisions awarding costs, Judge Robinson noted that it should be “neither surprising nor binding” that “judges exercise their discretion differently.”