eDiscovery Daily Blog

• June 19, 2015

Hey, I could have said if it doesn’t “fit”, you must acquit…

In Fitbug Ltd. v. Fitbit, Inc., Case No. 13-1418 SC (N.D. Cal. May 13, 2015), California District Judge Samuel Conti, throwing in a jazz reference during his opinion, ruled to tax over $63,000 in costs to be paid to the prevailing defendant in the case.

Case Background

In this trademark infringement case between two companies that manufacture and sell portable electronic fitness tracking devices, the Court granted summary judgment in favor of the defendant. Pursuant to that judgment, the defendant submitted a bill of costs, seeking $88,888.86 in costs (apparently, they like the number “8”). The plaintiff objected, and the Clerk ultimately taxed costs of $54,089.15.

Despite the Clerk of the Court’s substantial reductions to the defendant’s costs, the plaintiff believed that the amount taxed still included non-taxable items. As a result, the plaintiff filed a motion for review of costs allowed by the Clerk to ask the Court to either reject the defendant’s claimed costs entirely or, at a minimum, reduce them by a further $27,468.58. In turn, the defendant opposed any further reductions in its costs.

Judge’s Ruling

With regard to the plaintiff’s argument that because the defendant’s declaration supporting its bill of costs did not specifically state that its claimed costs are “allowable by law” (as required by Civil Local Rule 54-1(a)), Judge Conti began his analysis by getting the semantics out of the way (and providing a handy jazz reference to boot):

“While Fitbug apparently believes ‘[n]o other words can tell it half so clearly,’ the requirement a party say the ‘three little words,’ ‘allowable by law,’ is merely a reminder that the Court expects them to submit costs they believe are taxable, not a set of magic words necessary to receive any costs. Cf. Sarah Vaughan, Three Little Words, on Live at the London House (Mercury Records 1958), available at: https://www.youtube.com/watch?v=9WSZ6IRC-ys.” (yes, he even provided a YouTube link) “As the language of Fitbit’s declaration makes clear, Fitbit submitted these costs in good faith and understood that doing so was a representation to the Court and the Clerk that the costs were “allowed by law.” Now the Court must decide whether Fitbit was right or not. The Court declines to elevate form over substance to avoid making that decision.”

As for the specifics of the eDiscovery costs, Judge Conti acknowledged that “Section 1920 was enacted in 1853 and as a result does not speak directly on the taxability of electronic discovery costs”, but noted that in this “vacuum”, “courts have analogized the language of Section 1920(4), which authorizes the taxation of ‘[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case . . .,’ to a variety of electronic discovery expenses.” As a result, Judge Conti denied the plaintiff’s motion for review on these costs, deciding to tax $32,282.05 in data extraction and processing costs and another $4,466.91 in costs for production deliveries. Taken together with costs for deposition and video transcripts, photocopying and scanning and preparation of demonstrative exhibits, Judge Conti determined the total costs to be taxed to be $63,660.94.

So, what do you think? Was that the right amount to award? Or should the judge have awarded a lesser amount? Please share any comments you might have or if you’d like to know more about a particular topic.

BTW, a link to the terrific Sarah Vaughan song referenced in the judge’s opinion can be found here.

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