Free Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-01854-LTB-BNB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Case No. 01-cv- 1854- LTB- BNB
LAWRENCE GOLAN RICHARD KAPP A. PUBLISHING CO. , INC , d/b/a ESS. A.Y. RECORDINGS SYMPHONY OF THE CANYONS RON HALL , d/b/a FESTIVAL FILMS , and JOHN McDONOUGH , d/b/a TIMELESS VIDEO ALTERNATIVES INTERNATIONAL

Plaintiffs

ALBERTO R. GONZALES , in his official capacity as Attorney General of the United States
and

MARYBETH PETERS , Register of Copyrights , Copyright Office of the United States
Defendants.

PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO REVIEW CLERK' TAXATION OF COSTS
Plaintiffs Lawrence Golan , Richard Kapp, S. A.
Publishing Co. ,

Inc. d/b/a ESS. A.Y

Recordings , Symphony Of The Canyons, Ron Hall d/b/a Festival Films , and John McDonough

d/b/a Timeless Video Alternatives International (collectively " Plaintiffs ), through their
undersigned counsel ,
July 6

oppose Defendants ' Motion to Review Clerk' s Taxation of Costs , served

2005 (Dkt. No. 121) (hereinafter " Motion to Review Costs

INTRODUCTION
Having prevailed on summary judgment , the government now seeks $10 767. 77 in costs for depositions that took place long after it filed for summary judgment and $193.41 in " copying

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costs " for documents having nothing to do with that motion.
see also

See

Motion to Review Costs at 1;
1 Because

Bill of Costs at 1; Declaration of Christopher R. Hall , dated 5/3/05 , ~~ 3

these costs were not reasonably necessary to the disposition of the summary judgment motions
the Court should deny the government's request in whole.

II.

RELEVANT FACTS

Plaintiffs commenced this action seeking judicial review of two copyright acts: the
Copyright Term Extension Act (" CTEA" ) and section 514 of the Uruguay Round Agreements
Act (" URAA" or " section 514" ). After several initial delays, including a temporary stay while

another copyright challenge was on appeal to the Supreme Court

see Eldred

v.

Ashcroft 537

US. 186 (2003), and a motion by the government to dismiss all claims , in March 2004 this Court
found that Plaintiffs had stated three cognizable claims challenging the constitutionality of the

URAA, and dismissed Plaintiffs ' claim against the CTEA. Order of March 15 , 2004 (Dkt. No.
26). After entry of a scheduling order in May 2004 , Exhibit A , Scheduling Order , dated May 19

2005 (Dkt. No. 32), rather than engaging in discovery, the government elected to file an early
summary judgment motion on June 22
2004. See

Defs Mot. for Summ. 1. , filed June 22 2004

(Dkt. Nos. 35 , 36). The Court thereafter granted Plaintiffs ' Rule 56(f) motion for discovery, and

denied Defendants ' motion to stay all discovery. Order of Aug. 18 2004 , (Dkt. No. 51). As of
November 24 2004 ,

the government's summary judgment motion on all claims was fully briefed

and pending before this Court.

1 A copy of the Bill of Costs signed June 28 2005 by Stephen P. Ehrlich , Chief Deputy Clerk (which includes the government's Bill of Costs form and supporting declaration of
Christopher Hall) is attached to the government's Motion to Review Costs at Tab A.

See also

Dkt. No. 120.

g.,

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In early January - shortly before the then-scheduled close of fact discovery - the
government contacted Plaintiffs for the first time to schedule a number of depositions. Because
of the long delay before the government sought any discovery in the case , the parties were

suddenly forced to schedule twelve depositions in a very short period of time. As a result , the

parties required numerous extensions from the Court before the close of fact and expert
discovery.

See , e.

Order of Dec. 3 ,

2004 (Dkt. No. 82) (granting in part and denying in part

Plaintiffs renewed motion to extend time to designate experts); Order of Jan. 26 , 2005 (Dkt. No.
86) (granting in part and denying in part motion for extension of time to complete discovery);
Order of Mar. 4 2005 (Dkt. No. 98) (granting unopposed motion of plaintiffs for extension of

time to complete expert depositions); Order of Mar. 30 , 3005 (Dkt. No. 106) (granting limited
extension of time to depose expert witness). All discovery ultimately closed on April 8 , 2005.
Meanwhile , Plaintiffs filed a cross motion for partial summary judgment on Plaintiffs
Copyright Clause claim ,
Feb. 16

after the close offact discovery. Plfs ' Mot. for Partial Summ.
2005. See

filed
Plfs ' Reply

2005 (Dkt. No. 90). This motion was fully briefed as of March 28

to Defs ' Resp. to Plfs ' Mot. for Partial Summ. J. (Dkt. No. 103).
On April 20 , 2005 , this Court granted Defendants ' summary judgment motion on all
claims , denied Plaintiffs ' partial motion , and thereafter entered final judgment.
See

Mem.

Opinion and Order of Apr. 20 , 2005 (Dkt. No. 109); Judgment , entered May 12 , 2005 (Dkt. No.
110). Defendants submitted a Bill of Costs on May 5 , 2005 , seeking costs of$10 767. 77 for

fees of the court reporter for all or any part of the transcript necessarily obtained for use in the
case " and $193.41 for " fees for exemplification and copies of papers necessarily obtained for use

in the case. " Plaintiffs timely opposed Defendants ' bill of costs. Plfs ' Obj. to Bill of Costs (Dkt.

,"

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No. 112). On June 28 , 2005 , after a telephonic hearing, the Chief Deputy Clerk of this Court
denied Defendants ' bill of costs in full , entering costs of $0.
See

Dkt. No. 120.

III.

ARGUMENT

Plaintiffs Should Not Pay The Discovery Costs Sought By The Government Because Only Costs For Deposition Transcripts Or Copying Used In Connection With The Prevailing Summary Judgment Motion Should Be Awarded.
The government , as the prevailing party, bears the burden of showing that the twelve

deposition transcripts and the document copies for which it now seeks costs meet the standards

of28 uS.

c. 9 1920.

See English

v.

Colorado Dept. of Corrections 248 F. 3d 1002 , 1013 (10th

Cir. 2001) (" burden is on the prevailing (party J to establish the amount of compensable costs and

expenses to which they are entitled. Prevailing parties necessarily assume the risks inherent in
failure to meet that burden. ) (citing cases). As the Supreme Court and the Court of Appeals for

the Tenth Circuit have cautioned
given careful scrutiny.
Callicrate v. Farmer v.

(iJtems proposed by winning parties as costs should always be
Arabian American Oil Co. 379 US. 227 , at 235 (1964);
1336 , 1340 (10th Cir. 1998).

Farmland Industries, Inc. 139 F. 3d

The litigation costs which may be awarded in favor of a prevailing party are expressly

enumerated in 28 US. C. 9 1920 and include " fees of the court reporter for all or any part of the
transcript necessarily obtained for use in the case " and " fees for exemplification and copies of
papers necessarily obtained for use in the case. " 28 US. C. 9 1920(2), (4). Thus , the standard for

determining whether deposition transcript costs or document copying costs are recoverable is the
same: whether the deposition or documents were " necessarily obtained for use in the case.
This standard ordinarily requires that the transcript or documents be actually used

by the court or

a party as evidence or to impeach.

United Int' l

Holdings, Inc.

v.

The Wharf (Holdings) Ltd 174

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RD. 479 (D. Colo. 1997) (Kane , 1.) For example

, in

United International

v.

The Wharf,

the

party prevailing at trial sought $2 700 in costs under section 1920(4) related to copying of

pleadings and motions. Judge Kane denied costs reasoning that the " phrase ' for use in the case
refers to materials

actually preparedfor use in presenting evidence to the court." Id

at 484.

coming to this conclusion , Judge Kane distinguished a case where costs had been permitted

because those costs " related to ' exhibits and documents
to court order or

actually presented

to the court pursuant
for summary

prepared for the court' s consideration of the motion
Id

judgment... ",

at 484 & n. 5 (emphasis added) (discussing
th Cir. 1976)).

Scroggins

v.

Air Cargo, Inc. 534

F.2d 1124 , 1133 (5

Likewise , to meet its burden to show that materials were " necessarily obtained for use in
the case

, the party seeking costs must specify clearly how the copying costs or deposition
James v. Coors Brewing Company,

transcripts were used. For example , in

73 F. Supp 2d at

1260-

, the prevailing party (James) sought to recover copying costs , but this Court disallowed

those costs because James failed to provide " specific examples of its evidentiary use " even

though he had argued generally that " much of this material was also used in connection with the
summary judgment motions and at trial." Id

at 1260. Moreover , regarding James ' request to
only

recover deposition costs , this Court allowed certain costs

where the transcripts were actually

used at trial. It declined costs for other depositions because James did not specify how the
transcripts were actually used in motions or at trial. Id

at 1261. This Court reasoned as follows:

I declined to award costs for the remaining depositions that Mr. James characterizes as " necessary to prepare for the testimony of witnesses who appeared in court. " Mr. James has failed to show that these depositions were reasonably necessary to the litigation and has not specified how they were used to prepare the witnesses. Likewise , although he argues that most of these depositions

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were used in the summary judgment response , Mr. James does not separate costs which can be attributed to depositions used in the brief."
Id

(emphasis in original). Similarly, the Tenth Circuit has noted that the " most direct evidence of
necessity ' is the
actual use of materials

obtained by counselor by the court.
th Cir. 1998) (quoting

Callicrate

Farmland Indus. , Inc. 139 F. 3d 1336 , 1340 (lo

Us. Industries 854 F.2d at

1245- 46) (emphasis added). Accordingly, a cost award is typically limited to materials
used

actually

in the case and the party seeking costs must provide specificity as to how the material was
See also Stahl v.

used.

SunMicrosystems, Inc. 139 F. RD. 173 , 174 (D. Colo. 1991) (Finesilver

C. 1.) (disallowing costs for depositions not introduced as evidence or used to impeach because

they were not " reasonably necessary to the litigation
In

the context of a winning summary judgment motion , as the Clerk here recognized , the
See James 73 F.

costs awarded must be for materials used in connection with that motion.

Supp.2d at 1260. As discussed further below , because the depositions and copying costs sought

by the government here had nothing at all to do with the parties ' cross motions for summary

judgment , and because the government fails to show how the costs associated with these
materials were otherwise " necessarily obtained for use in the case , this Court should affirm the
Clerk' s entry of no costs in this matter.
1.

The Deposition Costs Should Not Be Awarded Because They Were Taken Merely For Discovery Purposes and Were Not "Necessary " To the Summary Judgment.

This Court should not disturb the Clerk' s entry of no costs for the twelve deposition

transcripts in question because these depositions were taken purely for discovery and investigation purposes and were not " necessary for use in the case " under 28 US. C. 9 1920. The

government did not use any of the depositions for which it now seeks costs in connection with

),

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the summary judgment motion. It cited no depositions , documents , or any other evidence to
support its motion. It fails to explain how any of these depositions were ever used as evidence , or
that the Court relied on them in reaching any conclusion regarding summary judgment.

See

Motion to Review Costs at 5- 12;

see also

Hall Decl. ~ 3.

Indeed , it is significant that the first deposition noticed and taken by the government was
not until over six months after it filed its summary judgment motion and well after

the motion
filed

was fully briefed.

See

Defs ' Mot. for Summ. J. (Dkt. No. 35) (" Govt S. J. Mot."
dated

June 22

2004; Exhibit

Not. ofDep. of J. McDonough

January, 28 , 2005 (noticing first

deposition for Feb. 3 ,

2005). Accordingly, these depositions were for discovery purposes only,

and could not possibly have been " necessary " to the government's summary judgment motion.

James 73 F. Supp.2d at 1260;
cost award under 28 US. C.

Stahl 139 F. RD. at 174. As such , they cannot form the basis of a
9 1920.

Further , Plaintiffs agree with the government's characterization that these depositions
were " not relevant" to summary judgment. When Plaintiffs sought discovery under Rule 56(f) to

to respond to the government's early summary judgment motion
Discovery (Dkt. No.

see

Plfs ' Rule 56(f) Mot. for

37), filed

July 12 ,

2004 , the government opposed Plaintiffs ' motion arguing
not relevant

that the " facts that Plaintiffs seek time to develop are

to the pending summary
filed

judgment motion. " Defs Opp. to P' s Rule 56(f) Motion (Dkt. No. 42),
(emphasis added).

Aug. 4

2004 , at 2

See also e. g., id
Aug. 27 ,

at 15 ,

17; Defs ' Objections to Magistrate Judge s Rulings
Objs

(Dkt. No.

55), filed

2004; Reply ISO Defs

to the Mag. J. Ruling on Plfs ' R 56(f)

Motion (Dkt. No. 61),

filed

Sept. 27 , 2004. Making a similar argument , the government even
See

sought to stay all discovery until after a ruling on its summary judgment motion.

Mot. for

g.,

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Prot. Ord. Staying Disc. (Dkt. No. 43),

filed

Aug. 6 ,

2004. Thus , the government's prior court

filings admit that all of the depositions for which it now seeks costs were taken for discovery purposes only and had no bearing on its motion. The transcription costs associated with those
depositions are ,

thus , not recoverable as " necessarily obtained for use in the case " under 28

US. C.

9 1920(2).

Additionally, the government's discovery disclosures and other filings show that none of
these deposition costs were " necessary , as required by 28 US. C. 9 1920. From the joint
scheduling order, to initial disclosures , to the joint pretrial order , the government consistently

took the position that discovery in this case - including the depositions for which the government
now seeks costs - was unnecessary because its motion for summary judgment would resolve this
case as a matter oflaw.

See , e.

Exhibit A , Scheduling Order , dated May 19 , 2004 (Dkt. No.

32) at 12- 13

("None of Plaintiffs ' challenges to the URAA , therefore , require the development of

a factual record through discovery. ), at 14 (declining to join with Plaintiff an any discovery

scheduling), at 6 (requesting that initial disclosures be stayed); Exhibit C , Defendant's

Disclosure Pursuant to Rule 26(a)(I) at 1 (stating that it is " unaware of any individual likely to
have discoverable information that the government may use to support its claims or defenses.
dated June 2004; Exhibit

Final Pretrial Order at 5 (Dkt. No. 105) (" Because plaintiffs

facial challenge to the constitutionality of section 514. .. presents only questions of law, the
lawsuit can and should be resolved by dispositive motion. ), at 10- II(government identifies none

of the twelve witnesses in question as witnesses it "will" call at trial). Now that it has won
summary judgment ,

the government reverses itself and argues the " necessity "

of the 12

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deposition transcripts. The government cannot change its position merely when it suits its
pecuniary interests. Such tactics should not be rewarded.
2.

Copying Costs Should Not Be Awarded Because They Are Not Necessary.

For similar reasons , the government's attempt to recover copying costs under 28 US.

91920(4) should be denied. The government seeks $193.41 in photo copying costs it incurred when it elected, in January 2005 (after the motion was filed), to obtain a copy of documents from

Boosey & Hawkes. At the time the Clerk reviewed the government's Bill of Costs , the only
reason the government provided for the " necessity " of these costs was that " documents produced
by Boosey & Hawkes were included on Plaintiffs ' Exhibit List in the parties ' (March 25 , 2005)

Pretrial Order , ~ 7.

See

Hall Decl. , ~ 4 (Attached to Government's Motion to Review Costs at

Tab A). This reasoning fails , because at the time the government sought and paid for the copies

in January, the parties ' pretrial order had not even been drafted , so its stated basis for needing the
copies is questionable.

In its Motion to Review Costs , the government further proposes that these " copies were
necessary to the litigation , as the subpoenaed documents were
potentially

relevant to Plaintiffs

claims that section 514 had raised the costs of works that had been restored to copyright too high
for them to perform. " Motion to Review Costs at 12- 13 (emphasis added). The government

provides no examples of how these documents were actually used in this case , either in connection with their prevailing summary judgment motion or in any other aspect of the case. In
fact , like the depositions , these documents were not even subpoenaed until long after the

government's summary judgment motion was fully briefed. The government never identified

these documents as relevant to its case or used the documents for evidence or impeachment. It

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did not include them on its exhibit list.

See

Exhibit

Pretrial Order , at 21- 22. Accordingly, like

the other costs the government seeks under section 1920 , it is not proper to award the copies as
costs against Plaintiff.

See , e. g., James 73 F. Supp.2d at 1261?

3.

Cases Relied Upon By The Government Do Not Support The Award Of Costs.

The government points to no case similar to this one where costs were awarded (1) for
depositions or document discovery takeover six months after

a winning summary judgment

motion was filed , (2) to a party who readily admits that the depositions are " not relevant" to the
motion , and (3) for depositions that are
either the parties or the Court. Its heavy reliance on never

used in the case (as evidence or otherwise) by
Callicrate v.

Farmland Industries, Inc. 139

3d 1336 (10th Cir. 1998), is misplaced because the factual circumstances are distinguishable.
Callicrate

involved breach of contract and other state law claims against several

defendants. Over 18 months into discovery, the plaintiff (Callicrate) filed two motions for partial

summary judgment and all defendants filed counter motions to dismiss for lack of subject matter

jurisdiction based on non- diversity of citizenship. Unlike the facts here , in Callicrate ten
individual depositions were actually cited or used by the parties

in these jurisdictional motions

2 The government's reliance on Tilton v.

Capital Cities/ABC, Inc. 115 F. 3d

1471 ,

1475-

76 (10th Cir. 1997) is unpersuasive. That case reviewed for abuse of discretion an award of costs under section 1920(4) where the documents in question were either deposition exhibits , trial exhibits , imaged documents or third party documents. Since here there is no claim for copies used as deposition or trial exhibits , Plaintiffs presume the government intends to rely on the Court' s opinion on page 1476 (Section III. C. entitled " Imaged Documents and Third- Party Documents ). The Tenth Circuit's one- paragraph treatment of that question , however , sheds little

light on its reasoning. It lays out no facts from the record that would help analogize that case to
the facts in this case. See id

at 1476 (summarily holding that " After

reviewing the record ,

we

conclude that the district court did not abuse its discretion in taxing these costs. ). Accordingly, it provides little assistance in the questions presented here.

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and briefs and in Callicrate

s motions for partial summary judgment."

Id

at 1338 (emphasis

added). At least 150 pages of depositions were

cited

by the parties seeking dismissal in their
prior

motions to dismiss.

Id

at 1339. All of the depositions were taken and copies were made

the parties

' submission of their dispositive motions and briefs , and prior to the court' s dismissal
Id

of the case on jurisdictional grounds.

at 1342.

In

reviewing the cost award for an abuse of discretion , the Tenth Circuit recognized the

prevailing standard that costs are awarded if the materials or services are " necessarily obtained"
for use in the case and deemed " reasonable.
Id at 1339 (citing

Us. Indus.

854 F.2d at 1245).

It also explained that " though use at trial by counselor the court demonstrates necessity, if

materials or services are reasonably necessary for use in the case even though not used at trial
the court can find necessity and award the recovery of costs.
explained that:
Id

at 1339. The Court further

(a)lthough depositions taken merely for discovery are not taxable as costs , a deposition is not obtained unnecessarily even if not strictly essential to the court' resolution of the case where ( a) the deposition is offered into evidence , (b) is not frivolous , and (c) is within the bounds of vigorous advocacy.
Id

at 1339- 40 (citing

Furr

v.

AT

T Techs. ,

Inc.

824 F.2d 1537 ,

1550 (lO

th Cir. 1987). This

reasoning makes perfect sense and contemplates the circumstance where a transcript is obtained
and is " offered into evidence " in some manner other than at trial , for example in the context of a
dispositive motion. In

those circumstances , the transcript costs may appropriately be deemed

dealt with an order of "' just costs ' under 28 US. C. 9 1919 , and not directly with costs allowed under 9 1920 or Fed. R Civ. P. 54(d)" , the Tenth Circuit noted that the standards applied under 9 1920 are " helpful" and much of the Court' s analysis is the same under both statutes.
Callicrate

3 Though

);

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necessary. Accord, e. g., James 73 F. Supp. 2d at 1261 (depositions taken solely for discovery
purposes are not taxable);

United Int'l 174 F. RD. at 484 (" The phrase ' for use in the case

refers to materials actually prepared for use in presenting evidence to the court. ). Here , the
government cannot meet this basic standard because the depositions could not possibly

have

been " offered into evidence " when they did not exist at the time the motion was filed.
The Callicrate

court also explained that it is " best to judge reasonable necessity under

9 1920 in light of the facts known to the parties at the time the expenses were incurred idat
1340 (citing cases), and concluded that all of the depositions in that case were thus allowable as
costs. Id at 1341. In

drawing this conclusion , however , the
not

Callicrate

court relied heavily on the

two facts which are

present in the instant action: first , that the " parties or the court cited and

actually used" over half of the depositions in connection with the dispositive motions and
second , that all of " the depositions were taken and the copies were made prior to the parties

submission of their dispositive motions and briefs.

Id

at 1341. Here

none

of the depositions

were used in the case by either the parties or this Court , and all of the depositions were taken six
months or longer after

the dispositive motion was filed. And here , unlike

Callicrate the

government repeatedly admitted that the depositions in question were " not relevant" to its
dispositive motion which dealt with all of the merits of the case. See supra

at 7-

Under these circumstances, since none of the twelve depositions for which the government now seeks costs were introduced as evidence , used to impeach , or used in

connection with its summary judgment motion, and all were taken solely for discovery purposes
it would be improper to allow recovery of the costs.

See Farmer 379 US. at 235 (" (iJtems

proposed by winning parties as costs should always be given careful scrutiny

accord

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Callicrate 139 F. 3d at 1340 (same). Accordingly, the government has not met its burden to
show that the Clerk' s entry of no costs is improper, and this Court should deny the deposition

and document copying costs sought by the government.

The Amounts Sought By The Government Are Unreasonable Because They Include Extra Sums Required Either Because Counsel Did Not Timely Take Discovery Or For The Convenience of Counsel.
Even if this Court determines the costs for any of these depositions to be " necessary "
purposes of section 1920 , the amount of any such award " must be reasonable.
Us. Indus.

for

Touche

854 F.2d 1223 ,

1245 (lo

th Cir. 1988) (citing cases);

see also Farmer 379 US. at 235
sparingly exercised

discretion given district judges to tax costs should be

with reference to

expenses not specifically allowed by statute ) (emphasis added). Surcharges for expedited
preparation of transcripts , court reporter s travel , attendance by court reporters for weekend

depositions , condensed transcripts , electronic transcripts , and shipping and handling are not

reasonably necessary " under the costs statute.
n. 40 (5

See Fogelman

v.

ARAMCO 920 F.2d 278 286 &
Javetz

th Cir 1991) (citing cases) (costs for obtaining expedited deposition not taxable);

Board of Control 164 F. RD. 447 , 448 (W. D. Mich. 1996) (declining to permit surcharges for

expedited transcripts as not " reasonably necessary ). All of these charges are for the
convenience of counsel" and are not recoverable under section 1920.

See Barber

7 F. 3d

at 645.

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Here , the government seeks surcharged costs going well beyond the transcription fees

permitted under section 1920. At a minimum , the following charges totaling $1 826. 81 should be
disallowed:

Surcharge Item
Shipping & handling fees for Richard Kapp deposition Per Diem " charges for McDonough and Hall depositions Postage charges for McDonough and Hall depositions Condensed transcript for Stirland deposition Postage & handling fees for Stirland deposition Processing Fee/Original for Stirland Deposition Reporter s weekend attendance fee for Stirland Deposition Electronic transcript fee for Golan Deposition Extra copy fee for Golan Deposition Exhibit copying fee for Golan Deposition Index Tabs for Golan Deposition Delivery charges for Golan Deposition Appearance fee for Golan Deposition (weekend) Minuscript fee for Varian deposition Word index for Varian Deposition ASCII Disk for Varian Deposition Telephonic proceedings fee for Snyder Deposition Condensed Transcript/Media/Delivery fee for Snyder Deposition Evening fee for Rose Deposition Condensed Transcript/Media/Deliver fee for Rose Deposition Expedited transcript surcharge for Bently deposition

Amount
$21.50 $440 $10
$25 $10 $10 $300

$40

$45 $200 $25 $10 $15 $60. $55

$20 $55 $139. (f71.68)6

4 The record of all of these surcharged costs is attached to the Government's Bill of Cost.
See

Motion to Review Costs , Tab A at Hall Decl. , Attachment A. s The Bently deposition was taken in Cambridge , England. The invoice reflects an

exchange rate of 1.9436 for UK Pounds Sterling (f) to the US dollar. The costs reflected in this table in US Dollars use that same rate of exchange. 6 The court reporter for the Bently deposition charged an expedited transcription fee of

f4. 54 per page. Hall Decl. , Exh. A. The delivery price for this deposition would have been B. E-mail from R Tennyson of transcription per page had it not been
expedited. See Exhibit

(Footnote cont d on next page)

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Compressed with index transcript fee for Bently Deposition

$50.

f26)
Draft email copy of transcript for Bently Deposition Reporters travel expenses for Bently Deposition
Court reporters shipping of exhibits fee for Bently Deposition Read and Sign Shipping fee for Bently Deposition
$65.

(f33. 60)
$194. (flOO. 30)
$9.

(f5. 10)
$11.56 (f5. 95) 826.

Total of surcharges

All of these fees and surcharges were accrued merely for the convenience of counsel and

the expedited costs were incurred as a direct result of the government's long delay in taking
discovery in this action. Stahl v.

Sun Microsystems, Inc.

139 F . RD. 173 ,

174 (D. Colo. 1991)

(Finesilver , C. J.) (in no case are costs recoverable if the discovery was used solely for

investigation or incurred for " convenience of counsel" ). For example , after taking the position
for many months that discovery was " unnecessary " in this case, the government waited until the
eve of litigation deadlines before it began the process of scheduling any depositions. See supra

7. This delay created an unnecessary rush to schedule and hold twelve depositions over a short
period , and necessitated several extensions of the discovery deadlines.
See supra

at 3.

Additionally, the government's unsupported and vague suggestion that weekend
attendance fees for deponents Stirland and Golan were "reasonably necessary" because " in
at

least one of those instances , the depositions were scheduled during weekends at their behest at

(Footnote cont dfrom previous page)
service to C. Vogele dated 5/18/05. Thus , fO. 64 per page represents the surcharge for the expedited transcript. The Bently transcript totaled 112 pages , which works out to a total

surcharge of f71.68.

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least in part for the convenience of the witness.

In

fact , the reason that those depositions took

place on weekends was that these witnesses required significant advance notice in order to sit for
a deposition on a weekday due to work schedules and personal burdens. For example , deponent
Kortney Stirland , the director of Plaintiff Symphony of the Canyons , a small community
orchestra in Utah , is a pharmacist by profession. He is the only pharmacist in his community and

could not be absent from the pharmacy on a weekday without sufficient time to find a
replacement pharmacist. Scheduling on weekdays , thus , was made impossible since the time in

which to schedule depositions was very short. Moreover, it should not be overlooked that
deponent Kortney Stirland traveled approximately 200 miles from Utah, to Las Vegas , Nevada

for the convenience of counsel for his deposition. Awarding costs for expedited transcripts under
these circumstances would be an abuse of the rule.

Moreover , the government's mischaracterization of the circumstances surrounding the

Bently deposition must be corrected. The court reporter s travel expenses from London to
Cambridge are not a recoverable expense under section 1920.

West Wind Africa Line ,

Ltd V

Corpus Christi Marine Services Co.

834 F.2d 1232 ,

1237 (5

th Cir. 1988) ("

Section 1920 permits

recovery only of the court reporter s fee for a transcript not of the reporter s travel expenses.
(emphasis added). The expenses under section 1920 are limited to "fees of the court reporter for
all or any part of the transcript " not for travel costs.
Id;

28 U S. c. 9 1920. The government

offers no case law to support those fees. While Professor Bently happened to be in New York for
a conference prior to his deposition , he never informed counsel of this trip nor was he required to make himself available in New York if, indeed , he had any time during that trip. Moreover

Professor Bently provided a space in his offices for this deposition , such that the government did

Case 1:01-cv-01854-LTB-BNB

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Page 17 of 19

not have to rent space elsewhere. In any event, the court reporter s travel expenses - amounting
to approximately $194. 94 - do not fall within the allowable expenses of28 US. C.
9 1920(2)

which the government claims , and as such should be rejected.

Id

The government offers no

explanation why this is a case where the court' s discretion should be " sparingly exercised" in
awarding fees not expressly authorized by the statute.

Farmer 379 US. at 235

Finally, with regard to the $193.41 of costs for copying all of the Boosey & Hawkes
subpoenaed documents , even if their existence on Plaintiffs ' proposed exhibit list qualified the costs as recoverable , Plaintiffs ' exhibit list identified
& Hawkes. See only 10 pages

of documents from Boosey

Final Pretrial Order at 12 (items 3- 6 of exhibit list) (Dkt. No. 105). A charge of

nearly $200 for 10 pages of documents works out to nearly $20 per page. This high cost for plain
paper copies is obviously unreasonable. If these costs were recoverable , an appropriate amount

would be not more than 10 cents per page , or $1. 00 in total.
IV.

CONCLUSION.

For the above stated reasons , upon careful scrutiny, this Court should deny the
government's Motion for Review of costs and enter the Deputy Clerk' s award of $0 in costs. The

government has not met its burden to show that any of these costs were necessary to its case.
In the alternative , should the Court assess any transcription costs against Plaintiffs under

section 1920(2), those costs should in no event exceed $8 940. 97 because any amount above that

would necessarily include surcharges for services that are purely for the convenience of counsel.

Additionally, should the Court assess any document copying costs against Plaintiffs under
section 1920(4), those costs should in no event exceed $1 for copies of the 10 pages produced by
Boosey & Hawkes.

Case 1:01-cv-01854-LTB-BNB

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Dated: July 26 , 2005

Respectfully submitted

Lawrence Lessig Jennifer Granick
Colette Vogele
CENTER FOR INTERNET AND SOCIETY STANFORD LAW SCHOOL

Carolyn J. Fairless Hugh Q. Gottschalk Carolyn J. Fairless
/s WHEELER TRIGG KENNEDY

LLP

Crown Quadrangle 559 Nathan Abbott Way Stanford , CA 94305- 8610 Edward Lee (admitted in California) 55 W. lih Avenue Room 335 Columbus OH 43210

1801 California Street Suite 3600 Denver , CO 80202- 2636
Phone: (303) 244- 1800 Fax: (303) 244- 1879
Attorneys for Plaintiffs

Jonathan L. Zittrain Charles R Nesson
1525 Massachusetts Avenue

Cambridge , MA 02138

Case 1:01-cv-01854-LTB-BNB

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Page 19 of 19

CERTIFICATE OF SERVICE

(CM/ECF)

I hereby certify that on July 26 , 2005 , I electronically filed the foregoing PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO REVIEW CLERK' S TAXATION OF COSTS with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:

Carolyn J. Fairless fairless~wtklaw. com hart~wtklaw. com Hugh Gottschalk gottschalk~wtklaw. com hart~wtklaw. com;gottesfeld~wtklaw. com Christopher R. Hall Christopher.Hall~usdoj . gov

Carolyn J. Fairless by Janean C. Hart Carolyn J. Fairless Attorney for Plaintiffs Wheeler Trigg Kennedy LLP 1801 California Street , Suite 3600 Denver , CO 80202 Telephone: (303) 244- 1800 (303) 244- 1879 E-mail: f~id~_ ~~w1kli!ly. g9m
/s

Fax: