1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 BRIAN BROWN, No. 2:22-cv-02128 WBS DB 13 Plaintiff, 14 v. ORDER RE: BILL OF COSTS 15 CEMEX, INC.; CEMEX CONSTRUCTION MATERIALS PACIFIC, LLC; and DOES 16 1 to 10, 17 Defendants. 18 19 ----oo0oo---- 20 On July 10, 2024, the court entered summary judgment in 21 favor of defendant on all five claims –- three federal claims 22 asserted under the Americans with Disabilities Act (“ADA”), 42

et seq., and two state claims asserted under the 24 Fair Employment and Housing Act (“FEHA”),

25 et seq., all of which relate to disability discrimination. 26 (Docket No. 47.) On July 19, defendant submitted a Bill of Costs 27 pursuant to Local Rule 292(b). (Docket No. 49.) Defendant 28 claims costs of $672.00 for service and subpoena fees, $10,872.72 1 for transcripts, $55.00 for witnesses, and $57.70 for making 2 copies of necessary documents, for a total of $11,657.42. (Id.) 3 I. Legal Standard 4 Federal Rule of Civil Procedure 54(d)(1) governs the 5 taxation of costs and provides that “costs –– other than 6 attorney’s fees –– should be allowed to the prevailing party.” 7 Fed. R. Civ. P. 54(d)(1).

enumerates which 8 costs are taxable and allows for the recovery of “[f]ees for 9 printed or electronically recorded transcripts necessarily 10 obtained for use in the case,”

§ 1920(2); “[f]ees and 11 disbursements for printing and witnesses,” id. § 1920(3); and 12 “the costs of making copies of any materials where the copies are 13 necessarily obtained for use in the case,” id. § 1920(4). “The 14 cost of deposition copies is ‘encompassed’ by section 1920(2), 15 and is therefore properly taxed” under

. Alflex 16 Corp. v. Underwriters Labs., Inc.,

(9th Cir. 17 1990). “[28 U.S.C.] section 1920(4) enables a court to award 18 copying costs for any document ‘necessarily obtained for use in 19 the case’ and does not specifically require that the copied 20 document be introduced into the record to be an allowable cost.” 21 Haagen-Dazs Co. v. Double Rainbow Gourmet Ice Creams, Inc., 920

(9th Cir. 1990). 23 II. Discussion 24 Plaintiff raises various objections to the bill of 25 costs, which the court addresses by turn. (Opp’n (Docket No. 26 50).) 27 A. First and Second Objections: Prevailing Defendant in 28 FEHA Case 1 Plaintiff first invokes Williams v. Chino Valley Indep. 2 Fire Dist., where the California Supreme Court held that “an 3 unsuccessful FEHA plaintiff should not be ordered to pay the 4 defendant’s fees or costs unless the plaintiff brought or 5 continued litigating the action without an objective basis for 6 believing it had potential merit.”

(2015). 7 See also

(c)(6) (codifying frivolity 8 requirement for award of costs for prevailing FEHA defendant). 9 On the other hand, Fed. R. Civ. P. 54(d) states that costs should 10 be allowed to the prevailing party “[u]nless a federal statute, 11 these rules, or a court order provides otherwise.” 12 Plaintiff argues that, pursuant to the Erie doctrine, 13 Williams is a state substantive rule and should therefore 14 supersede any application of Rule 54(d). However, reimbursement 15 of costs is generally considered a procedural matter and federal 16 law therefore controls. See Clausen v. M/V New Carissa,

(9th Cir. 2003) (quoting Aceves v. Allstate Ins. Co., 18

, 1167–68 (9th Cir. 1995)); see also Duran v. Stock 19 Bldg. Supply W., LLC,

(9th Cir. 2017) 20 (“[plaintiff] incorrectly asserts that [Williams] rendered the 21 award of costs ‘substantive’ for purposes of [Erie]”). 22 Accordingly, defendant need not show that plaintiff’s 23 claims were frivolous, and the court will not deny any portion of 24 defendant’s bill of costs on this basis. 25 II. Third Objection: Witness Fee 26 Plaintiff next argues that the $40 witness fee lacks a 27 receipt, and that defendant is double-billing plaintiff. The 28 court finds no evidence in support of these contentions. First, 1 defendant includes an invoice that clearly documents the expert 2 witness fee; the court cannot discern why this does not suffice 3 to substantiate the requested fee. (Docket No. 49 at 13.) 4 Second, it appears from the invoice itself that the process 5 server from Nationwide Legal advanced defendant $40, not 6 plaintiff. As plaintiff can point to no instance where he has 7 previously been charged $40 for Dr. Grewal’s deposition, the 8 court will not remove this item from the bill of costs. 9 III. Fourth Objection: Duplicate Service Fee Charges 10 Plaintiff next alleges that defendant’s subpoena 11 charges are vague and duplicative. Specifically, plaintiff takes 12 issue with charges for both “Basic Fee” and “Service Fee” line 13 items for identical amounts that appear on each service and 14 subpoena invoice. However, defendant correctly points out that 15 every instance of the “Basic Fee” line item was excluded from 16 defendant’s calculation of its total service fees. (Docket No. 17 49 at 4, 7-12.) 18 Accordingly, the court will not exclude these costs 19 from the final bill. 20 IV. Fifth, Sixth, and Seventh Objections: Unreasonable 21 Deposition Charges 22 A. Plaintiff’s Deposition 23 Plaintiff next argues that defendant’s invoice for 24 plaintiff’s deposition includes unreasonable line items -– namely, 25 condensed and electronic transcript copies; video recording 26 services; and a “media package,” all totaling $1,208.75. (Docket 27 Nos. 50 at 6; 49 at 14.) Defendant correctly argues that 28

(2) explicitly allows for recovery of “[f]ees for 1 printed or electronically recorded transcripts necessarily 2 obtained for use in the case.” Further, a prevailing party may 3 recover costs for both printed and electronically recorded 4 transcripts relating to necessary depositions. See CP Anchorage 5 Hotel 2, LLC v. UNITE HERE! Loc. 878, No. 22-35318,

5319245, at *1 (9th Cir. Aug. 18, 2023) (“[B]oth printed and 7 electronically recorded transcripts may be ‘necessarily obtained 8 for use in [a] case,’ 28 U.S.C. 1920(2), and nothing in the 9 statute suggests that recovery is limited to only one format when 10 that requirement is met”) (citing Stanley v. Cottrell, Inc., 784

, 466–67 (8th Cir. 2015)). The same goes for video 12 recordings of depositions, especially those of named parties in 13 discrimination cases. See, e.g., Grasty v. San Juan USD, No. 14 2:18-CV-3242-KJN-PS,

, at *1 (E.D. Cal. Apr. 7, 15 2020) (finding costs relating to videorecording the plaintiff’s 16 deposition awardable when the plaintiff asserted discrimination 17 claims and the defendant recorded the deposition in order to have 18 the opportunity to “analyze plaintiff’s credibility, demeanor, 19 and ability as a witness”). 20 B. Dr. Sharnjit Grewal’s Deposition 21 Plaintiff challenges similar line items on the invoice 22 for the deposition of his own expert witness, Dr. Sharnjit Grewal. 23 (Docket Nos. 50 at 7; 49 at 21.) Here, the court agrees with 24 plaintiff that the following charges do not appear to be 25 necessary for the case: $117.00 for “Transcript – Supplemental 26 Surcharges;” $116.00 for “Premium Litigation Package 27 (SBF,PTZ,LEF,PTX);” and $110.00 for “Smart Summary – Over 100 28 Transcript Pages.” (Docket No. 49 at 21.) The court disagrees nnn nnn nnn enn EINE IIR OIE IIE EID IID EO

1 with plaintiff otherwise for the same reasons that apply to the 2 challenged line items from plaintiff’s deposition invoice. 3 Accordingly, the court will adjust downward defendant's 4 claimed transcript costs of $10,872.72 by ($117.00 + $116.00 + 5 $110.00 = ) $343.00, resulting in an adjusted amount of 6 | $10,529.72. 7 IIT. Total Costs 8 In total, costs of $11,314.42 will be allowed for 9 defendant and are taxed against plaintiff as follows: 10

12 13 Fees for printed or electronically recorded | $10,529.72 14 transcripts necessarily obtained for use in | (adjusted downward 15 || the case from $10,872.72) 16 17 Fees for exemplification and the costs of $57.70 18 || making copies of any materials where the 19 copies are necessarily obtained for use in 20 the case 21 22 IT IS SO ORDERED. 23 |} Dated: August 9, 2024 . 21 aithw A WILLIAM B. SHUBB 29 UNITED STATES DISTRICT JUDGE 26 27 28