Monday, November 28, 2011

Interpreting 28 U.S.C. § 1920

Of the history of the Synopsys case, the CAFC noted:

After nearly seven years of litigation, the district court granted Synopsys’s motion for summary judgment of noninfringement on April 15, 2010. We affirmed without opinion. In re Ricoh Co., Ltd. Patent Litig., 412 F. App’x 297, 298 (Fed. Cir. 2011).

And, of what was left of the case facing the CAFC in November 2011:

After judgment was entered against Ricoh, Synopsys filed a Bill of Costs seeking approximately $1.375 million in costs. Ricoh objected to the Bill of Costs. Synopsys filed an amended Bill of Costs seeking $1,208,616.09, to which Ricoh again objected. The Clerk disallowed $353,508.40 of the costs sought by Synopsys for a final taxation of $855,107.69. At the request of both parties, the District Court reviewed the Clerk’s taxation of costs and increased the allowed costs to $938,957.72. The district court stayed Ricoh’s payment of the costs pending this court’s decision on the merits. Taxation Order, slip op. at 16.
On November 12, 2010, the district court entered a judgment, awarding costs in the amount of $938,957.72 plus applicable post-judgment interest. Ricoh timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1).

As to sharing costs:

Here, there is no dispute that Synopsys agreed to share the cost of the Stratify database with Ricoh. Syn- opsys originally proposed that Ricoh “agree to pay half of the costs associated with producing [Synopsys’s] e-mails.” J.A. 3062. When Ricoh later suggested using Stratify to produce the e-mails, it agreed that “[t]he cost would be divided between the parties.” J.A. 3069. The parties then implemented this arrangement by entering into a 14-page agreement with Stratify in which they jointly retained Stratify to perform electronic discovery services. The parties characterized this agreement as a cost-sharing agreement, but never indicated that the cost-sharing was only temporary. Communications between the parties after the agreement with Stratify was executed continued to reflect the cost-sharing agreement. See, e.g., J.A. 3396 (“Accordingly, we . . . will split the cost, pursuant to the contract, of the additional databases.”). There is no indication in any of the extensive communications be- tween the parties that they intended this cost-sharing agreement to be anything other than a final settlement of the cost of the Stratify database. If the cost-sharing agreement were designed to be only an interim agree- ment, it seems likely that there would have been some indication to that effect in either the communications between counsel or the agreement with Stratify. Under these circumstances, the parties’ agreement is best inter- preted as agreeing to a final, not an interim, sharing of costs.

The parties’ agreement to share the cost of the Stratify database is controlling, and we reverse the district court’s award of $234,702.43 for Synopsys’s share of the database.

As to reproduction:

In light of the inadequate documentation, the district court abused its discretion in awarding $322,515.71 for reproduction and exemplification disputed by Ricoh.2 At the same time it is far from clear that the $146,584.83 conceded by Ricoh represents the full costs of copying the documents produced for Ricoh. Under the circumstances we think the best course is to vacate the district court’s award in this respect and to remand to the district court for further consideration.3

As to depositions:

Here, the district court taxed Ricoh for all depositions taken in the case because they “were taken in connection with several relevant aspects of the case, from validity to damage issues. As such, at the time the depositions were taken, it was reasonable to expect that they were for the purpose of trial preparation.” Taxation Order, slip op. at 15 (citation omitted). This finding was within the discre- tion of the district court. Because translation was necessary in connection with a number of these depositions, those costs are taxable under section 1920 as well. See Taniguchi v. Kan Pac. Saipan, Ltd., 633 F.3d 1218, 1221– 22 (9th Cir. 2011).


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