Case 6:21-cv-00898-ADA Document 324 Filed 10/15/24 Page 1 of 20
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`
`
`
`ALMONDNET, INC.,
`
`
`Plaintiff,
`
`
`
`v.
`
`
`AMAZON.COM, INC., AMAZON.COM
`SERVICES LLC, and AMAZON WEB
`SERVICES, INC.,
`
`
`Defendants.
`
`
`
`
`Civil Action No. 6:21-cv-00898-ADA
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`
`PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF THEIR BILL OF COSTS
`
`
`
`
`PUBLIC VERSION
`
`

`

`Case 6:21-cv-00898-ADA Document 324 Filed 10/15/24 Page 2 of 20
`
`TABLE OF CONTENTS
`
`I.
`
`Legal Standard .......................................................................................................................1
`
`II. Section 1920(1) – “Fees of the Clerk and Marshal.”.............................................................2
`
`III. Section 1920(2) – “Fees for printed or electronic recorded transcripts necessarily
`obtained for use in this case.” ................................................................................................2
`
`A. Transcripts of Court Proceedings.................................................................................. 2
`
`B. Transcripts of Depositions ............................................................................................ 3
`
`C. Videos of Depositions ................................................................................................... 7
`
`IV. Section 1920(3) – “Fees and disbursements for printing and witnesses.” ............................8
`
`V. Section 1920(4) – “Fees for exemplification and the costs of making any materials
`where the copies are necessarily obtained for use in the case.” ..........................................10
`
`A. Trial Animations/Graphics.......................................................................................... 10
`
`B. Trial Technician .......................................................................................................... 12
`
`C. Document Reproduction ............................................................................................. 13
`
`VI. Section 1920(6) – “Compensation of Court Appointed Experts.” ......................................14
`
`VII. Conclusion ...........................................................................................................................14
`
`
`
`
`
`
`
`
`
`i
`
`PUBLIC VERSION
`
`

`

`Case 6:21-cv-00898-ADA Document 324 Filed 10/15/24 Page 3 of 20
`
`TABLE OF AUTHORITIES
`
`Cases
`
`Crawford Fitting Co. v. J.T. Gibbons, Inc.,
`482 U.S. 437 (1987)) ............................................................................................................... 12
`
`Favata v. Nat’l Oilwell Varco, LP,
`No. 2:12-CV-82, 2014 WL 5822781 (S.D. Tex. Nov. 10, 2014) ............................................ 12
`
`Fogleman v. ARAMCO,
`920 F.2d 278 (5th Cir. 1991) ..................................................................................................... 3
`
`J.T. Gibbons, Inc. v. Crawford Fitting Co.,
`760 F.2d 613 (5th Cir. 1985 .................................................................................................... 12
`
`J.T. Gibbons, Inc. v. Crawford Fitting Co.,
`790 F.2d 1193 (5th Cir. 1986) ................................................................................................. 12
`
`MV3 Partners LLC v. Roku, Inc.,
`No. 6:18-CV-00308-ADA, 2022 WL 1913619 (W.D. Tex. June 3, 2022) ...................... passim
`
`Nilesh Enters., Inc. v. Laws. Title Ins. Corp.,
`No. SA-08-CV-661-XR, 2010 WL 2671728 (W.D. Tex. July 1, 2010) ................................... 7
`
`Pioneer Nat. Res. USA, Inc. v. Diamond Offshore Drilling, Inc.,
`No. 05-0224, 2009 WL 4020563 (E.D. La. Nov. 17, 2009 ..................................................... 12
`
`Schwarz v. Folloder,
`767 F.2d 125 (5th Cir. 1985) ................................................................................................. 1, 2
`
`Sterns Airport Equip. Co., Inc. v. FMC Corp.,
`170 F.3d 518 (5th Cir. 1999) ..................................................................................................... 3
`
`SynQor, Inc. v. Artesyn Techs., Inc.,
`No. 2:07-CV-497-TJW-CE, 2011 WL 4591893 (E.D. Tex. Sept. 30, 2011) ............................ 7
`
`Two-Way Media, LLC v. AT&T Servs., Inc.,
`No. SA-09-CA-00476-OLG, 2013 WL 12090356 (W.D. Tex. Nov. 22, 2013) ......... 10, 11, 12
`
`Ushijima v. Samsung Elecs. Co.,
`No. A-12-CV-318-LY, 2015 WL 11251558 (W.D. Tex. July 30, 2015)................................ 13
`
`Versata Software, Inc. v. SAP Am., Inc.,
`No 2:07-CV-153 CE, 2011 WL 4436283 (E.D. Tex. Sept. 23, 2011) ........................ 11, 12, 13
`
`Statutes
`
`28 U.S.C. §1821 ........................................................................................................................ 8, 9
`
`
`
`ii
`
`PUBLIC VERSION
`
`

`

`Case 6:21-cv-00898-ADA Document 324 Filed 10/15/24 Page 4 of 20
`
`28 U.S.C. §1920 ................................................................................................................... passim
`
`Rules
`
`FED. R. CIV. P. 54(d) ................................................................................................................... 1
`
`
`
`
`
`
`
`
`iii
`
`PUBLIC VERSION
`
`

`

`Case 6:21-cv-00898-ADA Document 324 Filed 10/15/24 Page 5 of 20
`
`On June 14, 2024, after a five-day trial on the merits, a jury returned a unanimous verdict
`
`in favor of Plaintiff AlmondNet, Inc. (“AlmondNet” or “Plaintiff”) on all issues. Dkt. 279. It
`
`found Defendants Amazon.com, Inc., Amazon.com Services LLC, and Amazon Web Services,
`
`Inc. (collectively, “Defendants” or “Amazon”) directly infringed U.S. Patent Nos. 8,671,139 (the
`
`“’139 patent”) and 7,822,639 (the “’639 patent”). Id. at 3. The infringing products are Amazon’s
`
`. The jury also rejected all of
`
`Amazon’s invalidity theories when it found the ’139 and ’639 Patents not invalid. Id. at 4. The
`
`jury awarded AlmondNet $121,950,000 to compensate AlmondNet for Amazon’s past
`
`infringement. Id. at 6. Consistent with the jury’s verdict, the Court entered Judgment on
`
`September 24, 2024, which stated that AlmondNet is also entitled to post-judgment interest and
`
`costs of court. Dkt. 320.
`
`AlmondNet is the prevailing party in this action and therefore entitled to recover its costs.
`
`See 28 U.S.C. §1920, FED. R. CIV. P. 54(d)(1); Local Rule CV-54(a); Dkt. 320 (“AlmondNet
`
`shall be entitled to recover costs of court.”). As detailed below, AlmondNet requests an award of
`
`$361,878.92 in costs. AlmondNet’s costs are enumerated in its Bill of Costs (Dkt. 322), which is
`
`also attached as Exhibit 1.
`
`I.
`
`Legal Standard
`
`The Federal Rules of Civil Procedure state, “[u]nless a federal statute, these rules, or a
`
`court order provides otherwise, costs—other than attorney’s fees—should be allowed to the
`
`prevailing party.” FED. R. CIV. P. 54(d)(1). “Under this rule, there is a strong presumption ‘that
`
`the prevailing party will be awarded costs.’” MV3 Partners LLC v. Roku, Inc., No. 6:18-CV-
`
`00308-ADA, 2022 WL 1913619, at *1 (W.D. Tex. June 3, 2022) (Albright, J.) (quoting Schwarz
`
`v. Folloder, 767 F.2d 125, 131 (5th Cir. 1985)). “The Fifth Circuit has held that this presumption
`
`
`
`1
`
`PUBLIC VERSION
`
`

`

`Case 6:21-cv-00898-ADA Document 324 Filed 10/15/24 Page 6 of 20
`
`intended to create prima facie entitlement to payment of costs and that the burden of overcoming
`
`this presumption shifts to the losing party.” Id. (citing Schwarz, 767 F.2d at 131). The Court must
`
`articulate a good reason for denying or reducing a prevailing party’s request for costs. Id.
`
`A prevailing party is permitted to recover the following categories of costs under 28
`
`U.S.C. §1920:
`
`1. Fees of the Clerk and Marshal;
`2. Fees for printed or electronically recorded transcripts necessarily obtained for
`use in the case;
`3. Fees and disbursements for printing and witnesses;
`4. Fees for exemplification and the costs of making copies of any materials where
`the copies are necessarily obtained for use in the case;
`5. Docket fees under section 1923 of this title;
`6. Compensation of court appointed experts, compensation of interpreters, and
`salaries, fees, expenses, and costs of special interpretation services under
`section 1828 of this title.
`
`II.
`
`Section 1920(1) – “Fees of the Clerk and Marshal.”
`
`Pursuant to Section 1920(1), AlmondNet seeks to recover its $402.00 filing fee for filing
`
`the Complaint because it is a fee of the Clerk. A true and correct copy of AlmondNet’s invoice
`
`for that fee is attached as Exhibit 2.
`
`III.
`
`Section 1920(2) – “Fees for printed or electronic recorded transcripts necessarily
`obtained for use in this case.”
`
`AlmondNet seeks to recover $143,800.20 in costs for printed and electronically recorded
`
`trial and deposition transcripts, and deposition videos. Section 1920(2) permits AlmondNet, as
`
`the prevailing party, to recover these costs. 28 U.S.C. §1920(2).
`
`A.
`
`Transcripts of Court Proceedings
`
`AlmondNet seeks taxation of costs of $33,384.00 for obtaining real-time and daily trial
`
`transcripts and $908.85 for all other pre-trial hearing transcripts. A true and correct copy of
`
`AlmondNet’s invoices for trial and pre-trial transcripts is attached as Exhibit 3.
`
`2
`
`PUBLIC VERSION
`
`

`

`Case 6:21-cv-00898-ADA Document 324 Filed 10/15/24 Page 7 of 20
`
`AlmondNet used the real-time and daily trial transcripts during trial, including to (i) assist
`
`AlmondNet in the ongoing preparation and presentation of its case, (ii) provide a record of the
`
`testimony of each witness, and (iii) provide a record of the Court’s rulings on evidence
`
`admissibility, demonstrative admissibility, jury instructions, and other matters. The Court’s
`
`orders were often recorded only in the real-time and daily transcript, and those orders influenced
`
`AlmondNet’s trial strategy and required a review of the record. For pre-trial hearings, AlmondNet
`
`seeks taxation and costs for obtaining transcripts for all discovery conferences, the Markman
`
`hearing, and the pre-trial conference. The pre-trial hearing transcripts were used in trial and/or for
`
`motion preparation. Additionally, AlmondNet needed the transcript from the pre-trial conference
`
`to draft the court requested proposed orders regarding the parties’ motions in limine and pretrial
`
`motions. See Ex. 4 (February 8, 2024 email from AlmondNet’s counsel to Judge Albright’s law
`
`clerk). Thus, the transcripts were necessarily obtained for use in the case.
`
`AlmondNet should therefore be awarded a total of $34,292.85 for its costs related to
`
`transcripts of court proceedings. See 28 U.S.C. §1920(2); MV3 Partners, 2022 WL 1913619, at
`
`*3 (awarding prevailing party costs related to transcripts of court proceedings).
`
`B.
`
`Transcripts of Depositions
`
`Costs related to depositions are permitted under §1920(2) if the depositions “were
`
`necessarily obtained for use in the case.” 28 U.S.C. §1920(2); Sterns Airport Equip. Co., Inc. v.
`
`FMC Corp., 170 F.3d 518, 536 (5th Cir. 1999). The Fifth Circuit “[has] consistently held that a
`
`deposition need not be introduced into evidence at trial in order to be ‘necessarily obtained for
`
`use in the case.’” Fogleman v. ARAMCO, 920 F.2d 278, 285 (5th Cir. 1991). “If, at the time it
`
`was taken, a deposition could reasonably be expected to be used for trial preparation, rather than
`
`merely for discovery, it may be included in the costs of the prevailing party.” Id.
`
`3
`
`PUBLIC VERSION
`
`

`

`Case 6:21-cv-00898-ADA Document 324 Filed 10/15/24 Page 8 of 20
`
`Here, AlmondNet seeks taxation of costs of $77,543.45 for the deposition transcripts of
`
`the parties’ fact and expert witnesses. An itemization of AlmondNet’s taxable deposition
`
`transcript costs and supporting invoices are included in Exhibit 5. Personal identifiable
`
`information has been redacted.
`
`Specifically, AlmondNet seeks to recover its costs for seventeen depositions it took, and
`
`four depositions it defended in this case. The deponents are identified in the table below.
`
`Deponent
`
`Roy Shkedi
`
`Scott Siegler
`
`Viraj Awati
`
`Ronald Knapp – deposed
`twice: once during venue
`discovery and once
`during fact discovery
`Neal Richter
`
`Nitin Saini
`
`Martin Blums
`
`Eric Koskinen
`
`Reasons Why Transcripts Were
`Necessarily Obtained for Use in This
`Case
`Inventor of the patents-in-suit and CEO
`of AlmondNet; AlmondNet’s 30(b)(6)
`witness; testified in person at trial
`Director of Amazon Publisher Services
`Demand and Activation; one of
`Amazon’s 30(b)(6) witnesses; testified
`by video deposition at trial
`Software development engineer on the
`Amazon Identity Program; One of
`Amazon’s 30(b)(6) witnesses; testified
`by video deposition at trial
`One of Amazon’s 30(b)(6) witnesses;
`VP of Ad Tech; testified by video
`deposition and in person at trial
`
`Director of science and engineering for
`the Amazon DSP; one of Amazon’s
`30(b)(6) witnesses; testified by video
`deposition and in person at trial
`Software development manager for
`Amazon Ad Exchange; one of
`Amazon’s 30(b)(6) witnesses; testified
`by video deposition at trial
`One of Amazon’s 30(b)(6) witnesses;
`finance manager; testified by video
`deposition at trial
`One of AlmondNet’s technical experts,
`provided an infringement expert report
`and testified at trial
`
`Party that identified
`the deponent as a
`trial witness
`AlmondNet and
`Amazon
`
`AlmondNet
`
`AlmondNet
`
`AlmondNet and
`Amazon
`
`AlmondNet and
`Amazon
`
`AlmondNet
`
`AlmondNet
`
`AlmondNet
`
`4
`
`PUBLIC VERSION
`
`

`

`Case 6:21-cv-00898-ADA Document 324 Filed 10/15/24 Page 9 of 20
`
`Scott Hayden
`
`Jiye (Eason) Liu
`
`Jim Bergman
`
`Jason Frankovitz
`
`Henry Houh – deposed
`three times: twice related
`to his enablement and
`written description expert
`report and twice related
`to his rebuttal
`infringement expert
`report
`Kevin O’Connor – third
`party witness
`Daniel Jaye – third party
`witness
`Dwight Merriman – third
`party witness
`
`Ward Hanson
`
`Christopher Bakewell
`
`One of Amazon’s 30(b)(6) witnesses, on
`the topic of licensing; testified by video
`deposition at trial
`Software development manager; one of
`Amazon’s 30(b)(6) witnesses; identified
`in Amazon’s third supplemental initial
`disclosures as having knowledge
`regarding the technical design,
`development, and operation of the
`accused Amazon products
`AlmondNet’s damages expert, provided
`an expert report and testified at trial
`One of AlmondNet’s technical experts,
`provided a validity expert report and
`testified at trial
`One of Amazon’s technical experts,
`provided an enablement and written
`description expert report and a rebuttal
`infringement expert report; testified in
`person at trial
`
`AlmondNet
`
`AlmondNet
`
`AlmondNet
`
`AlmondNet
`
`Amazon
`
`Inventor of one of Amazon’s prior art
`references; testified in person at trial
`Inventor of one of Amazon’s prior art
`references; testified in person at trial
`Inventor of one of Amazon’s prior art
`references; testified by video deposition
`at trial
`One of Amazon’s technical experts,
`provided a validity expert report;
`testified in person at trial
`Amazon’s damages expert, provided a
`rebuttal damages expert report and
`testified at trial
`
`AlmondNet and
`Amazon
`AlmondNet and
`Amazon
`AlmondNet and
`Amazon
`
`Amazon
`
`Amazon
`
`The deposition transcripts of the above-identified deponents were necessarily obtained for
`
`use in this case, including for the preparation of expert reports, drafting of summary judgment
`
`and Daubert motions, and preparation for trial. Further, all of the witnesses in the table above
`
`were identified on either AlmondNet’s or Amazon’s trial witness list. Dkt. 271 (List of
`
`5
`
`PUBLIC VERSION
`
`

`

`Case 6:21-cv-00898-ADA Document 324 Filed 10/15/24 Page 10 of 20
`
`Witnesses); Dkt. 252-5 (AlmondNet’s preliminary witness list); Dkt. 252-6 (Amazon’s trial
`
`witness list). AlmondNet’s counsel had to review these deposition transcripts for trial preparation.
`
`Only one of these deponents did not appear at trial either in person or by video deposition. The
`
`sole deponent that did not appear at trial—Mr. Jiye (Eason) Liu—was an Amazon 30(b)(6)
`
`witness identified in Amazon’s supplemental initial disclosures as having knowledge about the
`
`technical design, development, and operation of the accused Amazon products. Mr. Liu, who was
`
`identified on AlmondNet’s witness list but did not ultimately testify at trial, provided testimony
`
`related to the accused products that AlmondNet’s infringement expert ultimately relied on in his
`
`report. See, e.g., Ex. 6 (Koskinen Infringement Report) at ¶¶ 85-99.
`
`AlmondNet is not seeking expedited transcript delivery costs except for the 30(b)(6) and
`
`30(b)(1) depositions of Scott Hayden on April 18, 2023, Scott Siegler on April 28, 2023, Viraj
`
`Awati on May 11, 2023, Nitin Saini on May 16, 2023, Neal Richter on May 24, 2023, and Jiye
`
`(Eason) Liu on May 30, 2023; the depositions of Amazon’s technical expert Henry Houh on
`
`August 9, 2023, August 15, 2023, and August 30, 2023; the deposition of Amazon’s technical
`
`expert Ward Hanson on August 15, 2023; and the deposition of Amazon’s damages expert
`
`Christopher Bakewell on August 8, 2023. AlmondNet had to expedite delivery of these transcripts
`
`to meet the opening expert report deadline and Daubert and dispositive motion deadline. Those
`
`costs are included in the $77,543.45 requested above for the deposition transcripts. Ex. 5 at 1.
`
`During the May 2023 fact depositions, Amazon’s witnesses were deposed on, inter alia,
`
`the infringing features of the
`
`
`
`
`
`
`
`. The depositions occurred 13–43 business days before Dr. Koskinen had to issue his
`
`6
`
`PUBLIC VERSION
`
`

`

`Case 6:21-cv-00898-ADA Document 324 Filed 10/15/24 Page 11 of 20
`
`infringement expert report. In his report, he opined that
`
`
`
`
`
`infringe U.S. Patent Nos. 8,671,139 (“the ’139 Patent”) and 7,822,639 (“the ’639 Patent”). Ex. 6
`
`(Koskinen Infringement Report) at ¶¶ 113-214. Dr. Koskinen reached these opinions by, inter
`
`alia, reviewing the transcripts for the May 2023 fact depositions and citing to them in his report
`
`108 times. See, e.g., id. at ¶¶ 44, 48, 52, 87-88, 100-112, 143, 145, 187, 198, and 240.
`
`During the August 2023 expert depositions, all three Amazon experts were deposed on
`
`their respective expert reports. The depositions occurred 6–11 business days before AlmondNet
`
`filed its summary judgment motions and Daubert motions. AlmondNet had to expedite delivery
`
`of these transcripts because it relied on and attached them to its Daubert motions. See, e.g., Dkt.
`
`138-3 (Houh Depo Tr.); Dkt. 129-4 (Bakewell Depo Tr.). Indeed, AlmondNet sought to exclude
`
`several opinions from Dr. Houh and Mr. Bakewell. Thus, AlmondNet should be awarded these
`
`expedited transcript delivery costs. See MV3 Partners, 2022 WL 1913619, *4 (awarding non-
`
`incidental costs when expedited shipping was necessary to meet the Daubert and dispositive
`
`motion deadline).
`
`In sum, AlmondNet should be awarded a total of $77,543.45 in costs related to deposition
`
`transcripts.
`
`C.
`
`Videos of Depositions
`
`Section 1920(2) also permits taxing costs for video recordings of depositions. Nilesh
`
`Enters., Inc. v. Laws. Title Ins. Corp., No. SA-08-CV-661-XR, 2010 WL 2671728, at *3 (W.D.
`
`Tex. July 1, 2010) (“Videotape deposition costs and deposition transcripts are both recoverable
`
`costs.”); SynQor, Inc. v. Artesyn Techs., Inc., No. 2:07-CV-497-TJW-CE, 2011 WL 4591893, at
`
`*2 (E.D. Tex. Sept. 30, 2011) (explaining that the 2008 amendment to §1920 permits recovery of
`
`
`
`7
`
`PUBLIC VERSION
`
`

`

`Case 6:21-cv-00898-ADA Document 324 Filed 10/15/24 Page 12 of 20
`
`both deposition transcripts and electronic video recordings necessarily obtained for use in the
`
`case).
`
`AlmondNet seeks taxation of costs of $31,963.90 for the video depositions of the
`
`witnesses identified in the table above. AlmondNet’s invoices for these videos are included in
`
`Exhibit 5. Personal identifiable information has been redacted. Mr. Siegler, Mr. Awati, Mr. Saini,
`
`Mr. Blums, and Mr. Hayden testified as 30(b)(6) witnesses as well as in their individual capacities
`
`(i.e., 30(b)(1) witness) by video deposition at trial. Trial Tr. at 154:22-159:23; 166:5-170:23;
`
`384:20-386:7. Mr. Merriman was a third-party witness that testified by video deposition at trial.
`
`Id. at 887:7-901:17. Mr. Liu was an Amazon 30(b)(6) deponent that did not testify at trial, but
`
`that was on AlmondNet’s witness list and was critical in developing AlmondNet’s infringement
`
`theories for trial. AlmondNet should therefore be awarded its costs for these witnesses’ video
`
`depositions.
`
`In sum, AlmondNet should be awarded a total of $143,800.20 in costs related to trial
`
`transcripts, deposition transcripts, and deposition videos.
`
`IV.
`
`Section 1920(3) – “Fees and disbursements for printing and witnesses.”
`
`The statutory costs associated with witness attendance at trial are set forth by 28 U.S.C.
`
`§1821. In particular, the total fees requested for witness attendance are $40 per each day of
`
`attendance at a deposition or trial, pursuant to 28 U.S.C. §1821(b). The total fees for travel are
`
`calculated based on actual expenses of travel, pursuant to 28 U.S.C. §1821(c). Section 1821 sets
`
`no limit on the distance from which a witness may be brought, allowing reimbursement for any
`
`“distance necessarily traveled to and from such witness’s residence.” The total fees requested for
`
`lodging and meals and incidentals (i.e., subsistence) are calculated based on the per diem rates
`
`provided by the Administrator of General Services (https://www.gsa.gov/travel/plan-book/per-
`
`
`
`8
`
`PUBLIC VERSION
`
`

`

`Case 6:21-cv-00898-ADA Document 324 Filed 10/15/24 Page 13 of 20
`
`diem-rates) for the relevant time period and location, as required by 28 U.S.C. §1821(d). As set
`
`forth below, AlmondNet seeks to recover $14,747.81 in witness fees.
`
`Witness Attendance Fees (28 U.S.C. §1821(b))
`
`Date
`
`Event
`
`8/9/2023
`6/10/2024 to 6/11/2024
`
`Deposition
`Trial
`
`Days of
`Attendance
`1
`2
`
`Attendance
`Fee*
`$40
`$80
`
`8/11/2023
`6/13/2024
`8/15/2023
`6/10/2024 to 6/11/2024
`4/20/2023
`
`Deposition
`Trial
`Deposition
`Trial
`Deposition
`
`1
`1
`1
`2
`1
`
`$40
`$40
`$40
`$80
`$40
`
`Witness
`(Residence)
`Jim Bergman
`(Costa Mesa,
`CA)
`
`Jason Frankovitz
`(Los Angeles)
`Eric Koskinen
`(New York)
`Roy Shkedi
`(New York)
`
`6/10/2024 to 6/14/2024
`
`Trial
`
`$200
`5
`$560
`Requested Total
`* Attendance Fee calculated by multiplying days of attendance by $40, pursuant to §1821(b).
`
`
`
`Witness Travel Costs (28 U.S.C. §1821(c))
`
`Event Method of Travel
`
`Cost*
`
`Witness
`(Residence)
`Jim Bergman (Costa Mesa)
`Eric Koskinen (New York)
`Jason Frankovitz (Los Angeles)
`Roy Shkedi (New York)
`
`Trial
`Trial
`Trial
`Trial
`
`$2,152.96
`Airplane and Car
`$2,912.96
`Airplane and Car
`$1,705.93
`Airplane and Car
`$1,516.96
`Airplane
`Requested Total $8,288.81
`* The travel costs are the actual travel expenses on the basis of the means of transportation
`reasonably utilized. True and correct copies of travel receipts for Mr. Bergman, Dr. Koskinen,
`Mr. Frankovitz, and Mr. Shkedi are attached as Exhibit 7. Personal identifiable information has
`been redacted.
`
`
`Witness Subsistence Costs (28 U.S.C. §1821(d))
`
`Witness
`
`
`Days of
`Attendance
`at Trial
`
`Travel Dates Related to
`Attendance
`
`Lodging
`Costs*
`
`Meals &
`Incidentals**
`
`Subsistence
`Total
`
`Jim Bergman
`(Costa Mesa)
`Eric Koskinen
`(New York)
`
`2
`
`2
`
`06/06/2024 to 06/12/2024
`(7 days, 6 nights)
`06/08/2024 to 06/15/2024
`(8 days, 7 nights)
`
`$642
`
`$749
`
`$448
`
`$1090
`
`$512
`
`$1,261
`
`
`
`9
`
`PUBLIC VERSION
`
`

`

`Case 6:21-cv-00898-ADA Document 324 Filed 10/15/24 Page 14 of 20
`
`Jason Frankovitz
`(Los Angeles)
`Roy Shkedi
`(New York)
`
`1
`
`5
`
`06/06/2024 to 06/15/2024
`(10 days, 9 nights)
`06/04/2024 to 06/15/2024
`(12 days, 11 nights)
`
`$963
`
`$640
`
`$1,603
`
`$1,177
`
`$768
`
`$1,945
`
`
`Requested Total
`* Lodging costs calculated pursuant to the allowance proscribed by the Administrator of
`General Services: https://www.gsa.gov/travel/plan-book/per-diem-rates. In June 2024, the rate
`for lodging was $107 per night in Waco, Texas. Ex. 8 (True and correct printout from GSA
`website showing per diem costs for Waco, Texas in FY2024) at 1.
`**Meals and Incidentals calculated pursuant to the allowance proscribed by the Administrator
`of General Services https://www.gsa.gov/travel/plan-book/per-diem-rates. In June 2024, the rate
`for meals and incidentals was $64 per day in Waco, Texas. Ex. 9 at 1.
`
`V.
`
`Section 1920(4) – “Fees for exemplification and the costs of making any materials
`where the copies are necessarily obtained for use in the case.”
`
`$5,899
`
`
`
`As detailed below, AlmondNet seeks to recover $200,547.70 in costs for printing,
`
`copying, and making of documents for trial, along with its trial technician costs, necessarily
`
`obtained for use in this case. 28 U.S.C. §1920(4).
`
`A.
`
`Trial Animations/Graphics
`
`“[C]ourts have considered that in highly technical cases, [such as patent cases], trial
`
`technology is not only reasonable but necessary.” Two-Way Media, LLC v. AT&T Servs., Inc.,
`
`No. SA-09-CA-00476-OLG, 2013 WL 12090356, at *5 (W.D. Tex. Nov. 22, 2013). “[E]xpenses
`
`for the production of various types of non-testimonial evidence – such as photographs, maps,
`
`charts, graphs and other demonstrative aids – are taxable as costs provided that the prevailing
`
`party obtained court approval before incurring the expense.” MV3 Partners, 2022 WL 1913619,
`
`at *4 (quoting Two-Way Media, 2013 WL 12090356, at *5 (internal quotation marks omitted)).
`
`Notably, these costs do not need to be explicitly authorized by the court; an invitation or request
`
`by the court to submit tutorials or demonstratives, such as those used during trial, “is tantamount
`
`to pretrial approval.” Id. (quoting Two-Way Media, 2013 WL 12090356, at *5 (internal quotation
`
`marks omitted)). Further, this Court has allowed costs of graphics to be taxed, even when express
`
`
`
`10
`
`PUBLIC VERSION
`
`

`

`Case 6:21-cv-00898-ADA Document 324 Filed 10/15/24 Page 15 of 20
`
`authorization was not given, when those costs were “anticipated, useful, and a necessary tool to
`
`assist in the efficient presentation of cases.” Two-Way Media, 2013 WL 12090356, at *5-6; see
`
`also Versata Software, Inc. v. SAP Am., Inc., No 2:07-CV-153 CE, 2011 WL 4436283, at *2 (E.D.
`
`Tex. Sept. 23, 2011) (awarding $90,090.00 in costs for professional audio and visual (graphics)
`
`services without identifying specific pre-trial authorization)).
`
`Here, the parties litigated for nearly three years a complex and highly contested patent
`
`infringement suit that was tried before a jury in June 2024. AlmondNet necessarily incurred
`
`$112,454.00 in costs related to the preparation of AlmondNet’s animations and graphics played
`
`during trial. True and correct copies of AlmondNet’s invoice for these costs are attached as
`
`Exhibit 10. Personal identifiable information has been redacted. AlmondNet is only seeking to
`
`recover the cost highlighted in yellow.
`
`AlmondNet’s infringement technical expert, Dr. Eric Koskinen, included numerous
`
`animations and graphics in his 159 demonstrative slides that explained in detail the technology at
`
`issue in this case, the operation of alleged prior art systems, and the operation of
`
`
`
`. Graphics were
`
`especially important here because without them the jury could not visualize the complex
`
`functionality and operation of the infringing products and exactly how the products infringe the
`
`asserted patent claims.
`
`AlmondNet’s damages expert, Mr. Jim Bergman, also included numerous graphics in his
`
`70 demonstrative slides, including to illustrate concepts such as the multi-factor Georgia Pacific
`
`reasonable royalty damages model in a streamlined and orderly manner. Additionally,
`
`AlmondNet’s validity technical expert, Mr. Jason Frankovitz, included numerous graphics in his
`
`35 demonstrative slides, including to efficiently describe the reasons why Amazon’s invalidity
`
`
`
`11
`
`PUBLIC VERSION
`
`

`

`Case 6:21-cv-00898-ADA Document 324 Filed 10/15/24 Page 16 of 20
`
`expert Dr. Hanson’s theories were without merit. Finally, AlmondNet’s lead trial counsel, Mr.
`
`Marc Fenster, included numerous animations and graphics in his 36 demonstrative slides for his
`
`opening statement and 91 demonstrative slides for his closing statement to provide the jury with
`
`a high level overview of the testimony that would be and that ultimately was heard during trial.
`
`AlmondNet’s costs for these animations and graphics were “anticipated, useful, and a
`
`necessary tool to assist in the efficient presentation of [its] case[].” Two-Way Media, 2013 WL
`
`12090356, at *6. The use of these animations and graphics assisted the jury in considering the
`
`infringement and invalidity issues and allowed AlmondNet to present its case in a streamlined,
`
`orderly, and efficient manner. AlmondNet should therefore be awarded these costs under Section
`
`1920(4). See MV3 Partners, 2022 WL 1913619, at *4 (allowing the prevailing party to recover
`
`costs of its graphics used at trial).
`
`B.
`
`Trial Technician
`
`This Court and other courts in the Fifth Circuit have awarded technician costs as
`
`exemplification under §1920(4). See MV3 Partners, 2022 WL 1913619, at *4 (awarding trial
`
`equipment/technician costs); Favata v. Nat’l Oilwell Varco, LP, No. 2:12-CV-82, 2014 WL
`
`5822781, at *4-5 (S.D. Tex. Nov. 10, 2014) (listing numerous cases that awarded costs for an
`
`audio and visual technician at trial); Versata, 2011 WL 4436283, at *2 (awarding $90,090.00 in
`
`costs for professional audio and visual (graphics) services without identifying specific pre-trial
`
`authorization); Pioneer Nat. Res. USA, Inc. v. Diamond Offshore Drilling, Inc., No. 05-0224,
`
`2009 WL 4020563, at *5 (E.D. La. Nov. 17, 2009 (awarding over $90,000 in video trial support
`
`costs as exemplification under §1920(4)) (citing J.T. Gibbons, Inc. v. Crawford Fitting Co., 760
`
`F. 2d 613, 615 (5th Cir. 1985) (allowing recovery of costs for audiovisual equipment and its
`
`operation at trial when court requested it), aff’d, 790 F.2d 1193 (5th Cir. 1986) (en banc), aff’d
`
`sub nom. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437 (1987)). “The use of
`
`
`
`12
`
`PUBLIC VERSION
`
`

`

`Case 6:21-cv-00898-ADA Document 324 Filed 10/15/24 Page 17 of 20
`
`technology support during trial, particularly in complicated cases such as this, is an anticipated,
`
`useful, and necessary tool to assist in the efficient presentation of cases.” Versata, 2011 WL
`
`4436283, at *2. This Court held such costs should be reasonable. MV3 Partners, 2022 WL
`
`1913619, at *4.
`
`Here, AlmondNet seeks to recover $51,256.25 in costs for its trial technician. A true and
`
`correct copy of AlmondNet’s invoice for this cost is attached as Exhibit 11. Personal identifiable
`
`information has been redacted. AlmondNet’s trial technician costs were anticipated, useful,
`
`necessary, and reasonable. Indeed, AlmondNet presented its case in an efficient and effective
`
`manner to the jury because of its trial technician. AlmondNet’s trial technician was present and
`
`active throughout the entire trial and devoted dozens of hours outside of Court to helping
`
`AlmondNet prepare its case. For example, AlmondNet’s trial technician finalized the trial
`
`animations, prepared demonstrative exhibits, and ran AlmondNet’s audio-visual courtroom
`
`equipment. The Court should award AlmondNet reimbursement of its trial technician costs.
`
`C.
`
`Document Reproduction
`
`AlmondNet seeks to recover $36,837.45 in its document reproduction costs that
`
`necessarily resulted from the litigation. An itemization of AlmondNet’s total document
`
`reproduction costs and supporting invoices is contained in Exhibit 12. Personal identifiable
`
`information has been redacted. AlmondNet is only seeking to recover the costs highlighted in
`
`yellow.
`
`As this Court has recognized, there is a “generally accepted rule in the Western District
`
`that a prevailing party should be entitled to 50% of its document reproduction costs throughout
`
`the entire case.” MV3 Partners, 2022 WL 1913619, at *5 (citing Ushijima v. Samsung Elecs. Co.,
`
`No. A-12-CV-318-LY, 2015 WL 11251558, at *12 (W.D. Tex. July 30, 2015)). Because
`
`
`
`13
`
`PUBLIC VERSION
`
`

`

`Case 6:21-cv-00898-ADA Document 324 Filed 10/15/24 Page 18 of 20
`
`AlmondNet’s document reproduction costs total $73,674.91, application of the 50% general rule
`
`indicates that it should recover $36,837.45 of its costs.
`
`*
`
`*
`
`*
`
`In sum, AlmondNet should be awa