Case 6:21-cv-00898-ADA Document 329 Filed 11/04/24 Page 1 of 7
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`IN THE UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`ALMONDNET, INC.,
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`Plaintiff,
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`v.
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`AMAZON.COM, INC., AMAZON.COM
`SERVICES LLC, and AMAZON WEB
`SERVICES, INC.,
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`Defendants.
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`Civil Action No. 6:21-cv-00898-ADA
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`JURY TRIAL DEMANDED
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`DEFENDANTS’ OPPOSITION TO ALMONDNET’S BILL OF COSTS MOTION
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`Case 6:21-cv-00898-ADA Document 329 Filed 11/04/24 Page 2 of 7
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`Defendants file this opposition to raise just a single dispute concerning AlmondNet’s bill
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`of costs.1 AlmondNet requests over $64,000 in “exemplification” costs for its trial graphics and
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`trial technician that the Fifth Circuit, the Federal Circuit, and this Court have all rejected as not
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`recoverable under the costs statute, thereby inviting the Court to reconsider its own prior well-
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`reasoned decision and commit reversible error. The Court should follow its own analysis in
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`Profectus Tech. LLC v. Google LLC, No. 6:20-cv-101-ADA, 2022 WL 3362282, at *5-9 (W.D.
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`Tex. Aug. 15, 2022), which AlmondNet ignores, and decline that invitation.
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`Section 1920(4) permits courts to tax “fees for exemplification and the costs of making
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`copies of any materials where the copies are necessarily obtained for use in the case.” 28 U.S.C.
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`§ 1920(4). The Federal Circuit applies regional circuit law to this question. See Summit Tech.,
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`Inc. v. Nidek Co., Ltd., 435 F.3d 1371, 1374 (Fed. Cir. 2006). The Fifth Circuit interprets the
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`statute narrowly and excludes costs for trial graphics and technicians. See, e.g., Innovation Scis.,
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`LLC v. Amazon.com, Inc., No. 21-2111, 2022 WL 2824675, at *4 (Fed. Cir. July 20, 2022)
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`(reversing district court’s award of trial graphics and trial technician costs under § 1920(4)); see
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`also Profectus, 2022 WL 3362282, at *5 (interpreting Fifth Circuit jurisprudence as “disallowing
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`costs for consulting fees associated with preparing trial graphics”) (citing Summit Tech., 435 F.3d
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`at 1375-78). And while the definition of exemplification sometimes “may allow for and capture
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`1 AlmondNet claims to have reduced its initial request for over $364,000 to “avoid a dispute,”
`“streamline the disputed issues” or “compromise.” (Mot. at 2-3 n.1-5.) In reality, AlmondNet
`inflated its request with impermissible or unsupported costs in nearly every category under § 1920
`including, among other things: (1) witness fees for its corporate representative and CEO, Mr.
`Shkedi; (2) first and business class airfare for Mr. Shkedi and AlmondNet’s experts; (3) witness
`fees for all of AlmondNet’s witnesses for their entire stay in Waco (not limited to the days each
`witness testified); (4) deposition fees for incidental line-items like multiple Realtime feeds for the
`same deposition and ASCII rough drafts; (5) court reporter fees for discovery conferences; and (6)
`deposition video costs for witnesses that testified in person or whose video no party played at trial.
`AlmondNet only agreed to reduce its request when Amazon pointed out the law and authority
`disallowing such costs.
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`Case 6:21-cv-00898-ADA Document 329 Filed 11/04/24 Page 3 of 7
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`the costs beyond mere documents, such as physical product samples, this Court’s accepted
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`definition . . . excludes expenses incurred for graphics and trial technician services for trial.”
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`Profectus, 2022 WL 3362282, at *7. Awarding such costs would constitute error and an abuse of
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`discretion. See, e.g., Innovation Scis., 2022 WL 2824675, at *4) (quoting Summit Tech., 435 F.3d
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`at 1375).
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`AlmondNet seeks over $64,000 for costs identical to those the Federal Circuit reversed in
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`Innovation Sciences and the Court itself denied in Profectus. In Profectus, Google sought
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`“courtroom equipment, graphics, and trial technician fees.” Profectus, 2022 WL 3362282, at *5-
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`6. The Court denied those costs, confirming that in the Fifth Circuit, “‘Exemplification’ should
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`be narrowly construed” and excludes the expenses AlmondNet now seeks. Id. at *6 (emphasis
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`in original). It ruled in no uncertain terms that “[t]rial graphics, trial consultant or technician fees,
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`and a vague trial equipment charge from the same third-party trial graphics team are not examples,
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`illustrations, prototypes, samples, or the like” that would qualify as “exemplifications” under §
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`1920(4). Id. at *7. The Court concluded that “[s]uch costs simply do not fall within the language
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`of the statute.” Id. (citing Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 573 (2012) (“Because
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`taxable costs are limited by statute and are modest in scope, we see no compelling reason to stretch
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`the ordinary meaning of the cost items Congress authorized in § 1920.”)) (emphasis added). So,
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`like Google, AlmondNet’s “case support represents a view of § 1920 that the Fifth Circuit appears
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`to have abandoned.” Profectus, 2022 WL 3362282, at *7. The reasoning and result should be the
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`same here.
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`Despite the clear instruction in Profectus, AlmondNet argues that the Court should award
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`its graphics and technician costs as “anticipated, useful, and necessary” for its presentation at trial.
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`(Mot. at 4-8.) But the utility of these costs is immaterial because they do not qualify as
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`“exemplifications” in the first instance. Rejecting a similar argument, the Court held that
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`Case 6:21-cv-00898-ADA Document 329 Filed 11/04/24 Page 4 of 7
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`“[b]ecause the Court finds that [these] requested costs are not ‘exemplative,’ no further analysis
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`should be required.” Profectus, 2022 WL 3362282, at *8. For support, AlmondNet cites caselaw
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`from MV3 Partners, Two-Way Media, and Versata (Mot. at 4-8), each of which the Court already
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`considered and rejected in Profectus. See Profectus, 2022 WL 3362282, at *5-8 & n.6.2 While it
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`recognized that “some courts have historically expanded the definition of ‘exemplification’ to
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`incorporate a wide variety of exhibits and demonstrative aids. . . . after a further assessment of the
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`law and the restrictive language of the statute, the Court is of the opinion that awarding such costs
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`is beyond the purview of the Court” and that AlmondNet’s view has “since been abrogated with a
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`restrictive focus on the language of the statute.” Id. at *6, *8 (emphasis added). That ends the
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`analysis.
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`AlmondNet also argues that the Court has awarded animation and graphics in two post-
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`Profectus cases. (Mot. at 7 (citing NCS Multistage Inc. v. TCO AS, No. 6:20-cv-00622-ADA, Dkt.
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`328 (W.D. Tex. Mar. 16, 2023); NCS Multistage Inc. v. Nine Energy Serv., Inc., No. 6:20-cv-
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`00277-ADA, Dkt. 300 (W.D. Tex. Dec. 12, 2022).) The Court does not provide its reasons for
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`granting costs in either case involving the same plaintiff. (See Dkts. 320-2, 327-6.) Regardless,
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`the Court’s award in other cases does not make it proper here. As the Court acknowledged in
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`Profectus, “to continually err for the sake of consistency is still error.” 2022 WL 3362282, at *6.
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`And “[b]ecause nothing in § 1920(4) authorizes taxing costs for trial graphics, trial technicians,
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`[or] trial equipment . . . either explicitly or implicitly,” the Court should “decline[] to hold
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`2 AlmondNet also cites Favata v. Nat’l Oilwell Varco, LP, No. 2:12-cv-82, 2014 WL 5822781,
`at *4-5 (S.D. Tex. Nov. 10, 2014) for the notion that other courts have awarded trial technician
`fees as taxable costs. (Mot. at 7.) Like other cases AlmondNet cites, Favata predates Profectus,
`in which the Court performs a “deep review of the caselaw” and concludes that “no plausible
`reading of [§ 1920(4)’s] provision for fees for exemplification permits recovery for expenses
`resulting from the time an A/V technician spends in trial.” Profectus, 2022 WL 3362282, at *5-8
`(citing United Biologics, LLC v. Allergy & Asthma Network/Mothers of Asthmatics, Inc., No. 5:14-
`cv-35, 2021 WL 1968294, at *11 (W.D. Tex. May 17, 2021)).
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`Case 6:21-cv-00898-ADA Document 329 Filed 11/04/24 Page 5 of 7
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`[Amazon] responsible for reimbursing [AlmondNet] for these costs.” Id. at *7. The Court should
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`deny all $64,009.10 of AlmondNet’s requested graphics and trial technician costs.
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`Dated: November 4, 2024
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`Of Counsel:
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`Deron R. Dacus (TX Bar #00790553)
`ddacus@dacusfirm.com
`THE DACUS FIRM, P.C.
`821 ESE Loop 323, Suite 430
`Tyler, TX 75701
`Tel: (903) 705-1117
`Fax: (903) 581-2543
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`Respectfully submitted,
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`By: /s/ Eric B. Young
`J. David Hadden (CA Bar No. 176148)
`Email: dhadden@fenwick.com
`Saina S. Shamilov (CA Bar No. 215636)
`Email: sshamilov@fenwick.com
`Ravi R. Ranganath (CA Bar No. 272981)
`Email: rranganath@fenwick.com
`Johnson K. Kuncheria (TX Bar No. 24070092)
`Email: jkuncheria@fenwick.com
`Johnathan L. Chai (CA Bar No. 339315)
`Email: jchai@fenwick.com
`FENWICK & WEST LLP
`801 California Street
`Mountain View, CA 94041
`Tel: (650) 988-8500
`Fax: (650) 938-5200
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`Todd R. Gregorian (CA Bar No. 236096)
`Email: tgregorian@fenwick.com
`Eric B. Young, (CA Bar No. 318754)
`Email: eyoung@fenwick.com
`Dargaye Churnet (Admitted Pro Hac Vice)
`Email: dchurnet@fenwick.com
`Christopher L. Larson (CA Bar No. 308247)
`Email: clarson@fenwick.com
`Brian M. Hoffman (Admitted Pro Hac Vice)
`Email: bhoffman@fenwick.com
`FENWICK & WEST LLP
`555 California Street, 12th Floor
`San Francisco, CA 94104
`Tel: (415) 875-2300
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`Jeffrey A. Ware (WA Bar No. 43779)
`Email: jware@fenwick.com
`FENWICK & WEST LLP
`401 Union Street, 5th Floor
`Seattle, WA 98101
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`Case 6:21-cv-00898-ADA Document 329 Filed 11/04/24 Page 6 of 7
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`Tel: (206) 389-4510
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`James S. Trainor (Admitted Pro Hac Vice)
`Email: jtrainor@fenwick.com
`Kevin X. McGann (Admitted Pro Hac Vice)
`Email: kmcgann@fenwick.com
`Jessica Lin (NY Bar No. 5035860)
`Email: jessica.lin@fenwick.com
`FENWICK & WEST LLP
`902 Broadway, 18th Floor
`New York, NY 10010
`Tel: (212) 921-2001
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`Counsel for Defendants
`AMAZON.COM, INC., AMAZON.COM SERVICES
`LLC, and AMAZON WEB SERVICES, INC.
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`Case 6:21-cv-00898-ADA Document 329 Filed 11/04/24 Page 7 of 7
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`CERTIFICATE OF SERVICE
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`I hereby certify that all counsel of record who are deemed to have consented to electronic
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`service are being served with a true and correct copy of this document on November 4, 2024, via
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`the Court’s CM/ECF system per Local Rule CV 5. Additionally, the attachment to this document
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`was served by email on all counsel of record.
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`/s/ Eric B. Young
`Eric B. Young
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