Case 3:21-cv-00812-TWR-JLB Document 411 Filed 04/02/24 PageID.19247 Page 1 of 4
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
` Case No.: 21-CV-812 TWR (JLB)
`
`ORDER (1) GRANTING IN PART
`AND DENYING IN PART
`PLAINTIFF TACTION
`TECHNOLOGY, INC.’S MOTION
`TO RE-TAX COSTS; AND
`(2) ALLOWING SUPPLEMENTAL
`BRIEFING FROM DEFENDANT
`APPLE INC.
`
`(ECF Nos. 406, 407)
`
`Defendant.
`
`TACTION TECHNOLOGY, INC.,
`Plaintiff,
`
`v.
`APPLE INC.,
`
`
`
`On February 8, 2024, the Clerk of Court taxed costs in Defendant Apple Inc.’s favor
`in the amount of $69,072.06. (See generally ECF No. 406.) Presently before the Court is
`Plaintiff Taction Technology, Inc.’s Motion to Re-Tax Costs (“Mot.,” ECF No. 407),
`which was timely filed on February 15, 2024, as well as Defendant’s Opposition to
`(“Opp’n,” ECF No. 409) and Plaintiff’s Reply in Support of (“Reply,” ECF No. 410) the
`Motion. Although the Motion is noticed for a hearing on April 11, 2024, (see ECF No.
`408), the Court determines that the Motion is appropriate for resolution on the papers
`without oral argument pursuant to Civil Local Rule 7.1(d)(1).
`/ / /
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`21-CV-812 TWR (JLB)
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`Case 3:21-cv-00812-TWR-JLB Document 411 Filed 04/02/24 PageID.19248 Page 2 of 4
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`Through the instant Motion, Plaintiff seeks only to reduce the costs taxed against it
`by $17,756.40, representing the amount awarded for five expedited deposition transcripts,
`on the grounds that the cost of expediting the transcripts was not “necessarily obtained for
`use in the case” under 28 U.S.C. § 1920(2) and Civil Local Rule 54.1(b)(3).1 Plaintiff
`contends that “the expedited processing was optional, and the transcripts could have been
`obtained on a regular schedule instead.” (See Mot. at 3.) Defendant, on the other hand,
`claims that the expedited transcripts were necessary because of the “short turn-around to
`file timely motions citing to that testimony.” (See Opp’n at 2.) The Court’s review is de
`novo. See Hesterberg v. United States, 75 F. Supp. 3d 1220, 1223 (N.D. Cal. 2014) (citing
`Lopez v. San Francisco Unified Sch. Dist., 385 F. Supp. 2d 981, 1000–01 (N.D. Cal.
`2005)).
`The Court agrees with those that have concluded that “the costs of expedited delivery
`are not recoverable generally.” Plantronics, Inc. v. Aliph, Inc., No. C 09-01714 WHA LB,
`2012 WL 6761576, at *6 (N.D. Cal. Oct. 23, 2012) (citing City of Alameda v. Nuveen Mun.
`High Income Opportunity Fund, No. C 08-4575 SI, 2012 WL 177566, at *3 (N.D. Cal.
`Jan. 23, 2012)). Defendant, as the party seeking costs, bears the burden of establishing that
`the costs it is seeking are compensable, see Hesterberg, 75 F. Supp. 3d at 1224 (citing City
`of Alameda, 2012 WL 177566, at *1), i.e., that expedited processing of the deposition
`transcripts in question was truly “necessar[y].” In Meier v. United States, for example, the
`court concluded that “[t]he costs to expedite the depositions . . . were necessary under the
`circumstances of th[e] cases” where they “were expedited in order to accommodate the
`tight deposition schedule plaintiff himself requested.” See No. C 05-04404 WHA, 2009
`WL 982129, at *2 (N.D. Cal. Apr. 13, 2009). Although Defendant references a “short turn-
`around to file timely motions” as the basis for requiring expedited transcripts here, (see
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`Specifically, Plaintiff challenges the $2,872.95 awarded for the February 9, 2023 deposition of
`Dr. James Biggs, (see ECF No. 396-4 at 20–21), and $2,929.50 awarded for the February 10, 2023
`continuation of that deposition, (see id. at 18–19); the $4,650.00 awarded for the April 20, 2023 deposition
`of Dr. James Oliver, (see id. at 44–45); the $3,581.55 awarded for the April 26, 2023 deposition of
`Dr. Patrick Kennedy, (see id. at 46–47); and the $3,722.40 awarded for the May 1, 2023 deposition of
`Dr. Allison Okamura, (see id. at 48). (See Mot. at 2.)
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`Case 3:21-cv-00812-TWR-JLB Document 411 Filed 04/02/24 PageID.19249 Page 3 of 4
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`Opp’n at 2), “nothing in the record shows that depositions could not have been scheduled
`earlier or that there is something special about timing that should allow expedited delivery
`costs to be included as ‘costs’ under 28 U.S.C. § 1920(d).” See Plantronics, 2012 WL
`6761576, at *6.
`Although the Court would be well within its rights to exclude the entirety of the
`$17,756.40 Plaintiff seeks in light of Defendant’s failure to adduce any evidence
`concerning what portion of those costs is allocable to the expedited service surcharge, there
`is no dispute that Apple would otherwise be entitled to recover its costs for “an original
`and one copy of any deposition.” See S.D. Cal. CivLR 54.1(b)(3)(a). The Court therefore
`GRANTS IN PART AND DENIES IN PART Plaintiff’s Motion (ECF No. 407) and RE-
`TAXES costs in Defendant’s favor as calculated by the Clerk of Court less any surcharges
`attributable to expediting the transcripts of the depositions of Drs. Biggs, Oliver, Kennedy,
`and Okamura. Given that the non-expedited transcript service fee appears to be $3.90 per
`unit, it would appear that Defendant would be entitled to $1,251.90 for the February 9,
`2023 deposition of Dr. Biggs and $1,209.00 for the February 10, 2023 deposition of
`Dr. Biggs;2 $1,404.00 for the April 20, 2023 deposition of Dr. Oliver;3 and $1,479.10 for
`the April 26, 2023 deposition of Dr. Kennedy.4 Because no units are provided for
`Dr. Okamura’s deposition, however, it is unclear to the Court what portion of the $3,722.40
`Defendant seeks is compensable. Accordingly, Apple MAY FILE a supplemental
`submission within seven (7) days of the electronic docketing of this Order calculating the
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`Calculated as $3.90 x 321.00 and $3.90 x 310.00, respectively. (See ECF No. 396-4 at 18, 20.)
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`Calculated as $3.90 x 360.00. (See ECF No. 396-4 at 44.)
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`Calculated as $3.90 x 379.00. (See ECF No. 396-4 at 46.)
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`Case 3:21-cv-00812-TWR-JLB Document 411 Filed 04/02/24 PageID.19250 Page 4 of 4
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`costs to which it is entitled once the expedited deposition transcript fees have been
`subtracted.
`IT IS SO ORDERED.
`Dated: April 2, 2024
`
`
`
`_____________________________
`Honorable Todd W. Robinson
`United States District Judge
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