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LLC v. Affymetrix, Inc.

United States District Court, D. Massachusetts

September 30, 2014

E8 PHARMACEUTICALS, LLC and MASSACHUSETTS INSTITUTE OF TECHNOLOGY, Plaintiffs,
v.
AFFYMETRIX, INC. and NAVIGENICS, INC., Defendants.

ORDER ON BILL OF COSTS

GEORGE A. O'TOOLE, Jr., District Judge.

I. Introduction

Defendant Affymetrix, Inc. has filed a bill of costs pursuant to Federal Rule of Civil Procedure 54(d)(1). The plaintiffs, E8 Pharmaceuticals, LLC and Massachusetts Institute of Technology, object.

The award of costs is governed by 28 U.S.C. § 1920, which provides that the following may be taxed as costs: (1) fees of the clerk and marshal; (2) fees for transcripts necessarily obtained for use in the case; (3) fees and disbursements for printing and witnesses; (4) fees for exemplification and copies necessarily obtained for use in the case; (5) docket fees; and (6) compensation of court appointed experts and interpreters, and salaries, fees, expenses, and costs of special interpretation services. "The decision of a court to award costs must be carefully tailored to the statute devoted to the taxation of costs." Rodriguez-Garcia v. Davila , 904 F.2d 90, 100 (1st Cir. 1990) (citing 28 U.S.C. § 1920). Although the Court has considerable discretion in awarding costs, such "discretion is limited to awarding costs that are within the scope of 28 U.S.C. § 1920." Summit Tech., Inc. v. Nidek Co., Ltd. , 435 F.3d 1371, 1374 (Fed. Cir. 2006).

II. Discussion

Affymetrix seeks taxation of the following costs:

Deposition Costs: $65, 727.12 (Ex. A) Costs of Exemplification and Reproduction of Materials: $130, 108.68 Documents Requested by Plaintiffs: $7, 375.53 (Ex. B) Internal Copies of Documents/Exhibits/Pleadings: $16, 564.40 (Ex. C) Visual Aids for Markman Hearing: $106, 168.75 (Ex. D) Total: $195, 835.80

A. Depositions

A party seeking taxation of costs under Section 1920(2) must include supporting documentation to enable the court to assess whether the expenses were "necessarily obtained for use in the case." Summit Tech. , 435 F.3d at 1381. In its Bill of Costs, Affymetrix included supporting documentation for only 9 of the 23 depositions for which costs are sought. Although it later provided the underlying invoices for the remaining 14 depositions, representing to the Court that it "inadvertently did not include the invoices, " this gesture is too little, too late. Because of Affymetrix's oversight, the plaintiffs were compelled to engage in another round of briefing to respond to the late disclosed documentation. The Court declines to consider these invoices filed thirty-eight days after the filing of the Bill of Costs. The costs associated with these 14 depositions - totaling $15, 475.42 - are disallowed.

In addition to fees for deposition transcripts, Affymetrix seeks costs for extra services like expedited transcripts, realtime transmission, ASCII transcripts, and video services, among others. Such extra costs are not within the narrow scope of Section 1920(2) under prevailing authority. See, e.g., Bucksar v. Mayo, 2013 WL 1320445, at *1 (D. Mass. Mar. 28, 2013); see also Taxation of Costs (2000) at 3, http://www.mad.uscourts.gov/resources/pdf/taxation.pdf ("Taxation of Costs"). Only the costs of the transcripts, courier charges, and attendance fees will be allowed, totaling $14, 981.85.

B. Documents Requested by Plaintiffs

The plaintiffs do not challenge the cost of exemplification and reproduction of materials requested by the plaintiffs, as documented in the SF Legal invoices (Bill of Costs, Ex. B (dkt. no. 238-3)) ...


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