Viamedia, Inc. v. Comcast Corporation et al

Northern District of Illinois, ilnd-1:2016-cv-05486

MEMORANDUM bill of costs {{369}} by Comcast Corporation, Comcast Spotlight, Inc. / Memorandum in Support of Defendants' Bill of Costs

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Case: 1:16-cv-05486 Document #: 370 Filed: 09/17/18 Page 1 of 15 PageID #:17632 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION)) VIAMEDIA, INC.,) Plaintiff,) No. 16 C 5486) v.) Hon. Charles R. Norgle Sr.) COMCAST CORPORATION and) COMCAST SPOTLIGHT, LP,)) Defendants.)) MEMORANDUM IN SUPPORT OF DEFENDANTS' BILL OF COSTS Pursuant to Federal Rule of Civil Procedure 54(d), Local Rule 54.1, and the Court's August 16, 2018 Final Judgment, Defendants Comcast Corporation and Comcast Cable Communications Management, LLC (successor to Comcast Spotlight, LP and together with Comcast Corporation, "Comcast") submit this memorandum in support of their Bill of Costs. BACKGROUND On May 23, 2016, Plaintiff Viamedia, Inc. ("Viamedia") filed this lawsuit, raising antitrust and tortious interference claims. See Dkt. 1. Specifically, Viamedia alleged that Comcast had engaged in the anticompetitive practices of refusing to deal, exclusive dealing, and tying. See id. Viamedia also alleged that Comcast had engaged in various acts designed to tortiously interfere with Viamedia's prospects of retaining business from multichannel video programming distributors (MVPDs or, colloquially, cable companies) like RCN and WOW!. Comcast moved to dismiss the Complaint. See Dkt. 22. On November 4, 2016, this Court granted that motion in part and denied it in part, dismissing the refusal to deal claim with leave to replead, while declining to dismiss the other claims. See Viamedia, Inc. v. Comcast 1 Case: 1:16-cv-05486 Document #: 370 Filed: 09/17/18 Page 2 of 15 PageID #:17633 Corp. (Viamedia I), 218 F. Supp. 3d 674, 700 (N.D. Ill. 2016). Viamedia filed an amended complaint that repleaded the refusal to deal claim. See Dkt. 40. Comcast moved to dismiss the repleaded claim in the Amended Complaint on December 12, 2016. See Dkt. 45. The Court granted that motion on February 22, 2017, dismissing the refusal to deal claim with prejudice. See Viamedia, Inc. v. Comcast Corp. (Viamedia II), 2017 WL 698681, at *1 (N.D. Ill. Feb. 22, 2017). The parties proceeded to discovery, which was extensive. Each party produced hundreds of thousands of documents. Between the two parties, 40 witnesses, including 4 proffered expert witnesses, were deposed. At the close of all discovery, Comcast moved to exclude both of Viamedia's proffered experts and to strike an untimely expert report. See Dkts. 208, 212, 216. Comcast also moved for summary judgment on all claims. See Dkt. 264. In support of its summary judgment motion, Comcast submitted over 75 pages of briefing and over 3,200 pages of documentary evidence. See Dkts. 271, 273, 339, 340. On August 16, 2018, this Court granted summary judgment to Comcast and entered judgment in Comcast's favor on all of Viamedia's claims. See Viamedia, Inc. v. Comcast Corp. (Viamedia III), 2018 WL 3921741, at *1 (N.D. Ill. Aug. 16, 2018). In the same opinion, the Court also granted Comcast's motion to exclude Viamedia's proffered damages expert, Dr. Thomas Lys, and granted in part and denied in part as moot Comcast's motion to exclude Viamedia's proffered liability expert, Dr. Harold Furchtgott-Roth. In its final judgment, the 1 Court further ordered that "Defendant(s) shall recover costs from plaintiff(s)." See Dkt. 357. 1 As set forth in Comcast's "Motion to Set Schedule for Briefing Defendants' Entitlement to Attorneys' Fees and For Exchange of Fee-Related Information," Comcast intends to move for "reasonable attorneys' fees, costs, and disbursements," including under the 2003 Agreement between Comcast and Viamedia in a separate motion. See Dkt. 362. Comcast reserves all rights to seek additional costs and expenses. 2 Case: 1:16-cv-05486 Document #: 370 Filed: 09/17/18 Page 3 of 15 PageID #:17634 After entry of final judgment, Judge St. Eve—before whom this case had been pending since 2016 and who has since joined the Seventh Circuit—was replaced on this case by Judge Charles R. Norgle, Sr., pursuant to Northern District of Illinois Internal Operating Procedure 13(j). See Dkt. 364. LEGAL STANDARD The prevailing party is entitled as a matter of course to recover taxable costs under Federal Rule of Civil Procedure 54(d). See Movitz v. First Nat'l Bank of Chi., 982 F. Supp. 571, 573 (N.D. Ill. 1997) (Norgle, J.). Consistent with the Court's August 16, 2018 final judgment and binding Seventh Circuit authority establishing it as the prevailing party in this action, Comcast seeks $431,120.53 for taxable costs incurred in this litigation. See Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 944 (7th Cir. 1997) ("[Defendant] is the 'prevailing party' because the district court granted summary judgment in its favor on all counts."). Taxing costs against the non-prevailing party first requires a determination that the cost is recoverable under under Rule 54(d). Costs recoverable under Rule 54(d) are listed at 28 U.S.C. § 1920, and include: (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. After determining that a cost is recoverable, the Court must determine whether the amount assessed is reasonable. See Majeske v. City of Chi., 218 F.3d 816, 824 (7th Cir. 2000). The Seventh Circuit has cautioned that, at this second step, it is "unnecessary" to undertake "a 3 Case: 1:16-cv-05486 Document #: 370 Filed: 09/17/18 Page 4 of 15 PageID #:17635 painstaking judicial inspection of. . . cost claims" because "there is a market constraint on running up excessive expenses" in a lawsuit. Anderson v. Griffin, 397 F.3d 515, 522 (7th Cir. 2005). In other words, the uncertainty that accompanies litigation and the possibility that a party may not be able to shift its costs at the conclusion of a lawsuit creates a presumption that the prevailing party did not incur "unnecessary" or "excessive" costs. Id. Below Comcast identifies $431,120.53 in costs and expenses recoverable pursuant to Section 1920 that were charged to and paid by Comcast. ARGUMENT Comcast is entitled to the following categories of fees. A. Fees of the Clerk or Marshal Are Recoverable. i. Pro hac vice fees. Pro hac vice fees are recoverable as "fees of the clerk" under § 1920(1) in this circuit. See United States v. Emergency Med. Assocs. of Ill., Inc., 436 F.3d 726, 730 (7th Cir. 2006). Six attorneys appeared pro hac vice on behalf of Comcast in this matter. These costs total $300, and the relevant docket entries are attached to the Declaration of Ross B. Bricker ("Bricker Declaration" or "Bricker Decl.") as Exhibit A. ii. Service of Subpoenas. Comcast is entitled to recover the costs of serving subpoenas as "fees of the marshal." 28 U.S.C. § 1920(1). Where, as here, a party uses a private process server, the "fees may not exceed the amount charged by the United States Marshal Service, which is $65.00 per hour." Artunduaga v. Univ. of Chi. Med. Ctr., 2017 WL 1355873, at *2 (N.D. Ill. Apr. 13, 2017); see also 28 C.F.R. § 0.114 (setting rate at $65.00 per hour effective October 30, 2013). Comcast served or attempted to serve seven subpoenas and seeks its actual costs limited to $65.00 per subpoena. See Artunduaga, 2017 WL 1355873, at *2 (awarding costs for both the attempted and 4 Case: 1:16-cv-05486 Document #: 370 Filed: 09/17/18 Page 5 of 15 PageID #:17636 completed service of subpoenas). These costs total $455. The proof of payment for service or the process servers' invoices are attached as Exhibit B to the Bricker Declaration. B. Court Reporter and Transcript Fees Are Recoverable. Comcast seeks recovery of its costs incurred for deposition transcripts, costs for exhibits, costs related to videotaping depositions, and court hearing transcripts. These costs are detailed in Exhibits C and D to the Bricker Declaration. i. Deposition Transcripts. Comcast seeks to recover the costs of deposition and hearing transcripts in this case. The per-page rates pursuant to the Judicial Conference are $3.65 for ordinary (i.e., 30-day delivery) transcripts, $4.25 for "14-Day" transcripts, $4.85 for expedited (i.e., 7-day delivery) transcripts, $5.45 for 3-Day transcripts, $6.05 for daily transcripts, and $7.25 for hourly transcripts. The per- page rates for the first copy of those transcripts are, respectively, $0.90, $0.90, $0.90, $1.05, $1.20, and $1.20. A number of the depositions in this case were ordered as "2-Day Expedited" transcripts. Comcast has used the 3-Day rate for these transcripts, as the chart attached as Exhibit C to the Bricker Declaration explains. For real-time transcripts, the per-page rates are $3.05 for one feed, $2.10 for two to four feeds, and $1.50 for five or more feeds. See N.D. Ill. General Order 12-0003; N.D. Ill. General Order 18-0011. Comcast may also seek appearance fees for the court reporter, which is capped at $110 for a half-day (four hours or less) deposition and $220 for a full-day deposition. However, Comcast may recover the full-invoiced transcript costs for the depositions noticed or subpoenaed by Viamedia because Viamedia picked the court reporter (and, thus, the rate). Corcoran v. City of Chi., 2015 WL 5445694, at *6 (N.D. Ill. Sept. 15, 2015); see also Montanez v. Simon, 755 F.3d 547, 558 (7th Cir. 2014). Comcast's accompanying chart, attached as Exhibit C to the Bricker Declaration, reduces those appearance and transcript costs that 5 Case: 1:16-cv-05486 Document #: 370 Filed: 09/17/18 Page 6 of 15 PageID #:17637 exceed the published rates (except for the depositions that Viamedia noticed or subpoenaed), while requesting the actual costs where the cost is below the published rate. Costs incurred for deposition transcripts and court reporter fees necessarily obtained for this case are recoverable under Section 1920(2) and both are listed in Exhibit C of the Bricker Declaration. Armstrong v. BNSF Ry. Co., 2016 WL 7240751, at *4 (*N.D. Ill. Dec. 15, 2016). "The 'transcripts need not be absolutely indispensable in order to provide the basis of an award of costs; it is enough that they are "reasonably necessary."'" Nilssen v. Osram Sylvania, Inc., 2007 WL 257711, at *2 (N.D. Ill. Jan. 23, 2007) (quoting Barber v. Ruth, 7 F. 3d 636, 645 (7th Cir. 1993)); see also Movitz, 982 F. Supp. at 574 (Norgle, J.) (same). In fact, "[a] court is to presume that deposition transcripts are reasonable and necessary unless the [losing party] show[s] otherwise." Autozone, Inc. v. Strick, 2010 WL 2365523, at *1 (N.D. Ill. June 9, 2010) (citing Movitz, 982 F. Supp. at 575 (Norgle, J.)). The depositions transcripts obtained by Comcast were reasonably necessary at the time because: (i) 20 were cited as evidence in support of Comcast's motions for summary judgment or to exclude Viamedia's expert witnesses. See Allen v. Bake-Line Prods., Inc., 2002 WL 59440, at *1 (N.D. Ill. Jan. 15, 2002) (depositions cited in summary judgment briefing are necessary to the case); Bricker Decl. Ex. C; and (ii) the parties took a limited number of depositions given the circumstances of the case. Because neither party could waste one of its limited depositions, it follows that the depositions they did take were reasonably necessary at the time. See Fed. R. Civ. P. 30; Dkt. 37 § II.B.1.b; cf. Anderson, 397 F.3d at 522; Mother & Father v. Cassidy, 338 F.3d 704, 712 (7th Cir. 2003) ("The determination of necessity under 28 U.S.C. § 1920, the principal statute governing recoverable costs in federal court, must be made in light of the facts known at 6 Case: 1:16-cv-05486 Document #: 370 Filed: 09/17/18 Page 7 of 15 PageID #:17638 the time deposition. . . ."). Moreover, 14 of these depositions also were reasonably necessary 2 because Viamedia listed those witnesses on its Rule 26(a)(1) disclosures. Ordering expedited transcripts, rough transcripts, and real-time transcripts was necessary because of the complexity of the case and the number of depositions taken in a relatively compressed timeframe. See Chamberlain Grp, Inc. v. Techtronic Indus. Co., Ltd., 315 F. Supp. 3d 977, 1021-22 (N.D. Ill. 2018) (expedited and real-time transcripts were reasonably necessary and recoverable as costs given the tight timeline of that case). The parties held 41 depositions over the course of six months—including 36 depositions total between July 11 and October 4. See Bricker Decl., Ex. C. Furthermore, real-time transcription is reasonably necessary in a complex antitrust case like this because the ability to review answers in real-time increases the efficiency and effectiveness of questioning on complex subject matters. See id. Finally, Comcast also may recover the cost of delivery for the transcripts. See Finchum v. Ford Motor Co., 57 F.3d 526, 534 (7th Cir. 1995) (affirming award of costs that included "delivery charges by the court reporter"). In sum, Comcast is entitled to all its claimed deposition transcript costs. The invoices for these costs are attached as Exhibit C to the Bricker Declaration. ii. Costs for exhibits. Comcast is entitled to recover for the cost of deposition exhibits given those materials are "essential to understanding the content of a deposition, especially in a complex and heavily 2 Reasonable necessity exists where a party has included the witness on the "may call" or "will call" trial witness lists. See The Meds. Co. v. Mylan Inc., 2017 WL 4882379, at *5 (N.D. Ill. Oct. 30, 2017) (citing LG Elecs. U.S.A., Inc. v. Whirlpool Corp., 2011 WL 5008425, at *3-4 (N.D. Ill. Oct. 20, 2011)). Rule 26(a)(1) disclosures are the equivalent of a "may call" list before a pre-trial order is due. Viamedia itself affirmed the reasonably necessity of deposing witnesses on its 26(a)(1) disclosures by describing those witnesses as "likely to have discoverable information" that Viamedia would use "to supports its claims or defenses." Fed R. Civ. P. 26(a)(1)(A)(i). 7 Case: 1:16-cv-05486 Document #: 370 Filed: 09/17/18 Page 8 of 15 PageID #:17639 litigated case." LG Elecs. U.S.A., Inc. v. Whirlpool Corp., 2011 WL 5008425, at *3-4 (N.D. Ill. Oct. 20, 2011); see also Viamedia, Inc. v. Comcast Corp., 2017 WL 2834535, at *3, *6 (N.D. Ill. June 30, 2017) (describing the "large number of documents involved in this case" and how 3 Viamedia's production spanned "millions of pages"). Here, the 41 depositions relied heavily on documents—indeed, over 750 exhibits were marked at depositions. There can be little doubt that obtaining copies of exhibits was reasonably necessary and Comcast is entitled to recoup these costs. The invoices for these costs are attached as Exhibit C to the Bricker Declaration. iii. Costs for video depositions. Almost all depositions were recorded by both video and stenographic means. Comcast seeks to recover costs for both the stenographic transcription and video recording related to these depositions because both were necessary and reasonable. The Seventh Circuit authorizes this recovery. Little v. Mitsubishi Motors N. Am., Inc., 514 F.3d 699, 701-02 (7th Cir. 2008). As an initial matter, Comcast is entitled to recover video deposition costs because depositions were noticed to be video-recorded and Viamedia did not object to the video-recording under the procedure in Rule 26(c) of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 26(c)(1)(A) (providing that a party may seek a protective order from the court "forbidding" a particular 3 "[E]xhibits are often authenticated during a deposition, and it may be necessary for attorneys to use the marked exhibit in order to benefit from that authentication." Hillman v. City of Chi., 2017 WL 3521098, at *3 (N.D. Ill. Aug. 16, 2017) (quoting In re Dairy Farmers of Am., Inc. Cheese Antitrust Litig., 80 F. Supp. 3d 838, 856 (N.D. Ill. 2015)). Furthermore, "effective use of a deposition exhibit at trial or on summary judgment" requires a copy of the actual exhibit, not just the underlying document. Id. That is "because documents are usually referred to in depositions by their assigned exhibit numbers, [thus] litigants need to use the exhibit-stamped version of a document in order to benefit from a witness's deposition testimony about the document." Id. Moreover, Cengr v. Fuisbond Piping Sys., Inc., 135 F.3d 445, 456 (7th Cir. 1998) is not to the contrary. Cengr simply held that under the facts of that particular case that a party could not recover deposition exhibit costs where "plaintiff provided extra copies of the exhibits to defendant at the deposition and produced the same exhibits during discovery." Id. But the Court did not consider the rationales that Comcast advances here (or have been accepted by Chief Judge Castillo in Hillman or Judge St. Eve in LG Electronics): that deposition exhibits are crucial for effective summary judgment or trial advocacy, especially when the authentication of documents is at issue. 8 Case: 1:16-cv-05486 Document #: 370 Filed: 09/17/18 Page 9 of 15 PageID #:17640 method of "disclosure or discovery"). By failing to object, Viamedia has waived any challenge to the taxation of video recording fees. See Morrison v. Reichhold Chems., Inc., 97 F.3d 460, 464-65 (11th Cir. 1996) (per curiam) (cited with approval in Little v. Mitsubishi Motors N. Am., Inc., 514 F.3d 699, 701-02 (7th Cir. 2008) (per curiam)). Furthermore, where, as here, it was "reasonably necessary" for counsel to obtain both a stenographic transcription and a deposition video-recording, costs for both may be "taxed to the losing party." Mylan, 2017 WL 4882379, at *5. Reasonable necessity exists under several circumstances. First, when the plaintiff obtains a video-recording of a deposition (as Viamedia indicated it would when it noticed its depositions to be video-recorded), then it was necessary for Comcast, too, to obtain a video-recording. Id.; see also Springer v. Ethicon, Inc., 2018 WL 1453553, at *15 (N.D. Ill. Mar. 23, 2018). Reasonable necessity also exists where it is "uncertain whether the witness will appear for trial," including where the witness resides outside of the court's subpoena power. Mylan, 2017 WL 4882379, at *5 (quoting Artunduaga, 2017 WL 1355873, at *2). And, finally, reasonable necessity exists to obtain both a video and stenographic transcript exists where a party has included the witness on the "may call" or "will call" trial witness lists. Id. (citing LG Elecs., 2011 WL 5008425, at *3-4). As described above at footnote 2, many of these witnesses were listed on Viamedia's 26(a)(1) disclosures. Comcast is thus entitled to recover these video recording costs. These costs include the fees for the videographer, see Druckzentrum Harry Jung GmbH & Co. KG v. Motorola, Inc., 2013 WL 147014, at *3 (N.D. Ill. Jan. 11, 2013), as well as the "digitalization and synchronization" of the video, Mylan, 2017 WL 4882379, at *5. For the same reasons that expedited transcripts were crucial and Comcast was entitled to delivery and shipping costs for transcripts, Comcast is also 9 Case: 1:16-cv-05486 Document #: 370 Filed: 09/17/18 Page 10 of 15 PageID #:17641 entitled to these same costs for videos. The invoices for these costs are attached as Exhibit C to the Bricker Declaration. iv. Cost of court transcripts. Transcripts of court proceedings are recoverable if reasonably necessary. See Majeske, 218 F.3d at 825; Autozone, 2010 WL 2365523, at *2. A number of contested motions were heard by the Court and obtaining transcripts of certain of those proceedings, which included instructions and orders of the Court, was necessary. Here, that necessity is demonstrated by Comcast's repeated reliance on transcripts of Court proceedingsand the evidentiary hearing on Comcast's Motion to Exclude Viamedia expert Dr. Thomas Lysin various motions and 4 submissions to the Court. Such necessity is further supported by the Court's citation of hearing 5 transcripts in its Orders. Moreover, courts routinely award costs for transcripts that, like these, are necessary to maintain a complete record of the case, preserve any issues for appellate review, and prepare effectively for objections and motions that could reasonably arise before or during trial. E.g., Roulo v. Russ Berrie & Co., 1988 WL 99214, at *1 (N.D. Ill. Sept. 20, 1988) ("An attorney may properly obtain a transcript of trial to complete the case file and to be prepared in the event an appeal is filed."). Finally, as above with deposition transcripts, it was reasonably necessary to order transcripts in an expedited or rush fashion because of the tight timeline of this case and further compounded by the motion practice involved. For instance, as described above in footnote 4, 4 See, e.g., Dkt. 158 at 1 (Defs.' Mem. In Support of Mot. To Compel Compliance with the Court's June 9 Order) (citing 6/9/2017 Hr'g Tr. At 6:7-8); Dkt. 219 at 3-4 (Mem. Of Law In Suport of Defs.' Mot to Strike Untimely Disclosed Opinions of Dr. Thomas Lys) (citing Jan. 10, 2018 Hr'g Tr. 3:17-22) 5 See, e.g., Viamedia III, 2018 WL 3921741, at *27 (quoting Daubert Hr'g Tr. 153:24-154:5); Dkt. 283 at 2 (Order on Motion to Strike Untimely Lys Report) (quoting R. 220-5 at 4 (Jan. 10 Hr'g Tr. 4:10-12)). 10 Case: 1:16-cv-05486 Document #: 370 Filed: 09/17/18 Page 11 of 15 PageID #:17642 Comcast's Motion to Strike the Untimely Disclosed Opinions of Dr. Thomas Lys cited to the January 10, 2018 status hearing transcript. The Motion to Strike was filed January 24, 2018. See Dkts. 216, 219. Without ordering expedited (14-day) delivery, Comcast would not have had the transcript to cite in and attach to its Motion. See Dkts. 219, 220-5; see also Dkt. 283 at 2 (Order on Motion to Strike Untimely Lys Report) (quoting R. 220-5 at 4 (Jan. 10 Hr'g Tr. 4:10-12)). Comcast is thus entitled to recover these transcript costs totaling $530.50 as set forth in Exhibit D to the Bricker Declaration. C. Expert Deposition Attendance and Preparation Costs Are Recoverable. Certain courts in this District have concluded that, pursuant to Section 1920(3) and Rule 26(b)(4)(E) of the Federal Rules of Civil Procedure, "the costs associated with the time spent preparing [an expert] for a deposition are recoverable, as well as the time attending the 6 deposition." LG Elecs, 2011 WL 5008425, at *4. Costs may also be taxed for the expert's time spent reviewing the deposition transcript. See id. at *5. In this case, Viamedia deposed the two expert witnesses proffered by Comcast, Drs. Dennis Carlton and Mark Israel. In light of the complexity of the case, both experts appropriately spent substantial time preparing for their respective depositions. As set forth in their Declarations, Drs. Carlton and Israel spent 76 and 91 6 Defendants are aware that this Court has previously held that expert witness fees are not recoverable under 28 U.S.C. § 1920 and Rule 54(d). See Movitz, 982 F. Supp. 571 at 577-78 (Norgle, J.). However, the decision in Movitz did not address the Seventh Circuit's holding in Chambers v. Ingram, 858 F.2d 351 (1988) that, pursuant to Fed. R. Civ. P. 26(b)(4)(C), a prevailing party may recover reasonable expert fees for the time spent by the expert in responding to the opposing party's discovery requests. Id. at 360-61; see also Fairley v. Andrews, 2008 WL 961592, at *4 (N.D. Ill. Apr. 8, 2008) (St. Eve, J.) (describing Chambers and awarding costs for expert deposition preparation). In light of Chambers and the subsequent weight of authority in this District, the fees of the Comcast experts in connection with their depositions are properly awarded as costs. See, e.g., First Midwest Bank v. City of Chi., 2018 WL 4126570, at *17 (N.D. Ill. Aug. 29, 2018) (Leinenweber, J.); Se-Kure Controls, Inc. v. Vanguard Prods. Grp., Inc., 873 F. Supp. 2d 939, 956 (N.D. Ill. 2012) (Castillo, J.); Waters v. City of Chi., 526 F. Supp. 2d 899, 900-01 (N.D. Ill. 2007) (Shadur, J.); Profile Prods., LLC v. Soil Mgmt. Techs., Inc., 155 F. Supp. 2d 880, 886-87 (N.D. Ill. 2001) (Bucklo, J.). 11 Case: 1:16-cv-05486 Document #: 370 Filed: 09/17/18 Page 12 of 15 PageID #:17643 hours, respectively, on deposition preparation, attendance, and transcript review, which cost a total of $212,900 in fees. Declarations from Drs. Carlton and Israel, as well as their invoices, are attached to the Bricker Declaration as Exhibit E. D. Comcast is Entitled to Recover Exemplification and Photocopying Costs. i. E-discovery costs. Courts routinely hold that e-discovery costs "may be awarded under § 1920(4) for electronically scanning and processing documents because" these tasks are "the modern-day equivalent of exemplification and copies of paper." Artunduaga, 2017 WL 1355873, at *5 (collecting cases) (quotation marks omitted) (quoting Rawal v. United Air Lines, Inc., 2012 WL 581146, at *2 (N.D. Ill. Feb. 22, 2012)). Thus, under Section 1920(4), Comcast seeks to recover the following e-discovery costs: • The cost of "adding optical character recognition ("OCR") to the digital files." Id. at *6. As the Court recognized in Artunduaga, "this process is fundamental in ensuring that the digital documents were readable and searchable." Id. The necessity of electronic discovery means that ensuring digital documents can be read and searched is necessary to the case and thus properly taxable under Section 1920(4). • The costs of "converting [documents in] native [format] to TIFF." Artunduaga, 2017 WL 1355873, at *5. Here, the parties agreed on TIFF as the production format, which made this a necessary expense in this case. See id. at *5-6. In addition, the task described as "Exception Handling" (on the invoices attached as Exhibit E to the Bricker Declaration) is the cost of "re-TIFFing" or reformatting a document if there is an error during the original process. • The costs of applying Bates stamps, "which is 'generally considered a necessary and taxable expense in this district." Id. at *6 (quoting Life Plans, Inc. v. Sec. Life of Denver Ins. Co., 52 F. Supp. 3d 893, 903 (N.D. Ill. 2014)). On the invoices attached as Exhibit E to the Bricker Declaration, these services are referred to as "Endorsing." Comcast is entitled to $19,272.26 in e-discovery costs and the invoices for these costs are attached to the Bricker Declaration as Exhibit F. 12 Case: 1:16-cv-05486 Document #: 370 Filed: 09/17/18 Page 13 of 15 PageID #:17644 ii. Other duplication, exemplification and preparation costs. Under § 1920(4), Comcast is entitled to recover "the costs of making copies of any materials where the copies are necessarily obtained for use in the case." See Haroco, Inc. v. Am. Nat'l Bank & Tr. Co. of Chi., 38 F.3d 1429, 1441 (7th Cir. 1994) (costs of certain copying and collating work "squarely within [the] language" of Section 1920(4)). Courts recognize that reasonably necessary copying includes the cost of copying "discovery documents, pleadings and exhibits submitted to the court," Movitz, 982 F. Supp. at 577, and "the costs associated with photocopying of the exhibits for depositions, hearings, and trial," LG Elecs., 2011 WL 5008425, at *8. Comcast's printing and copying records list total amounts or page quantities, but nothing about the subject of the documents being copied. As the Seventh Circuit has held, this level of detail is acceptable for a bill of costs because it is "the best breakdown obtainable from retained records." Northbrook Excess & Surplus Ins. Co., 924 F.2d 633, 643 (7th Cir. 1991) ("[A Prevailing party is] not required to submit a bill of costs containing a description so detailed as to make it impossible economically to recover photocopying costs."). Costs for these services total $70,343.42, as described in the Bricker Declaration at Exhibit G. As explained in the Bricker Declaration, many of these costs were incurred in the days immediately before document and exhibit-heavy depositions or hearings or in the days immediately following large court filings requiring courtesy copies. Thus, it is unquestionable that the vast majority of these copying costs 7 are compensable under Section 1920(4). Recognizing that some copies were likely for the "convenience of counsel," Comcast has voluntarily discounted the actual costs by twenty percent 7 Furthermore, the per-page costs of photocopying, listed in the Bricker Declaration and at Exhibit G, are reasonable. See Heneghan v. City of Chi., 2011 WL 4628705, at *2 (N.D. Ill. Oct. 3, 2011) (finding per- page photocopy costs of $0.20/page for black-and-white and $1.00/page for color to be reasonable under Section 1920(4)). 13 Case: 1:16-cv-05486 Document #: 370 Filed: 09/17/18 Page 14 of 15 PageID #:17645 and, accordingly, requests only $56,274.74 in copying costs. See, e.g., Carpenter v. Ford Motor Co., 1993 WL 34831, at *3 (N.D. Ill. Feb. 11, 1993) (Kocoras, J.) (under Northbrook, discounting a party's claimed copying costs by 20% to compensate for some copies made for "convenience of counsel"). CONCLUSION For the foregoing reasons, Comcast respectfully requests that the Court enter an order awarding it $431,120.53 in costs. 14 Case: 1:16-cv-05486 Document #: 370 Filed: 09/17/18 Page 15 of 15 PageID #:17646 Dated: September 17, 2018 Respectfully submitted, COMCAST CORPORATION AND COMCAST CABLE COMMUNICATIONS MANAGEMENT, LLC /s/ Ross B. Bricker Ross B. Bricker Sally K. Sears Coder Daniel T. Fenske JENNER & BLOCK LLP 353 N. Clark Street Chicago, IL 60654-3456 Tel: (312) 222-9350 Fax: (312) 527-0484 Arthur J. Burke (pro hac vice) David B. Toscano (pro hac vice) Christopher P. Lynch (pro hac vice) DAVIS POLK & WARDWELL LLP 450 Lexington Avenue New York, New York 10017 Tel: (212) 450-4000 Fax: (212) 701-5800 Attorneys for Defendants Comcast Corporation and Comcast Cable Communications Management, LLC 15