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Sprint Communications Company L.P. v. Time Warner Cable Inc.

United States District Court, D. Kansas

December 5, 2019

SPRINT COMMUNICATIONS CO., L.P., Plaintiff,
v.
TIME WARNER CABLE, INC., et al., Defendants.

          MEMORANDUM AND ORDER

          John W. Lungstrum United States District Judge

         This matter comes before the Court on the motion by defendants (“TWC”), pursuant to Fed.R.Civ.P. 54(d)(1), for review of the Clerk's taxation of costs in favor of plaintiff (“Sprint”) (Doc. # 523). As more fully set forth below, the motion is granted in part and denied in part. The motion is granted with respect to Sprint's costs for nine depositions taken solely in another case; but the motion is denied with respect to Sprint's costs for the six other challenged depositions that were taken in the instant case. Accordingly, the costs taxed by the Clerk shall be reduced in the amount of $17, 918.85, and thus costs shall be taxed in the total amount of $1, 040, 845.95.

         I. Background

         Sprint filed three related patent infringement actions in this Court, against TWC and two other companies, which cases were consolidated for pretrial purposes. Plaintiff filed a fourth infringement suit, against Cox Communications, Inc. and related entities (collectively “Cox”), which was litigated in federal court in Delaware, and which the parties settled, with each party bearing its own costs. A jury found against TWC and awarded damages to Sprint, and judgment was eventually awarded by this Court in favor of Sprint in the amount of $145, 983, 548.00. The Federal Circuit affirmed the judgment.

         Sprint submitted a bill of costs (with a supporting brief) in the amount of $1, 157, 002.05. TWC objected to various items, including with respect to costs for “over a dozen” depositions taken in the Cox case in Delaware, which TWC did not attend, after discovery had closed in the present case. TWC specifically identified only one such deposition, however. In its reply, Sprint argued that the costs of any such depositions should be taxed, but it withdrew a few other items, and it reduced its request for costs to a total amount of $1, 117, 783.15. On September 30, 2019, the Clerk taxed costs in favor of Sprint in the amount of $1, 058, 764.80. The Clerk denied Sprint certain requested costs, including some costs relating to depositions.[1] TWC then filed the instant motion for review. Specifically, TWC objects to the taxation of costs with respect to 15 depositions (referenced by particular invoices submitted by Sprint), on the basis that such depositions were taken in the Delaware case against Cox and involved witnesses that had already been deposed in the present action.

         II. Governing Standards

         Fed. R. Civ. P. 54(d) states that costs should be allowed to the prevailing party. See id. The applicable statute provides that “[f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case” may be taxed as costs. See 28 U.S.C. § 1920(2). Such costs must be “reasonably necessarily to the litigation of the case.” See In re Williams Sec. Litig. - WCG Subclass, 558 F.3d 1144, 1148 (10th Cir. 2009) (quoting Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1204 (10th Cir. 2000)). That determination is based not on hindsight but on the facts and circumstances at the time the cost was incurred. See Id. The “necessarily obtained” standard, however, “does not allow a prevailing party to recover costs for materials that merely added to the convenience of counsel or the district court.” See Id. at 1247 (internal quotations and citation omitted). The prevailing party bears the burden of establishing the amount of costs to which it is entitled. See Id. at 1148. Whether materials are necessarily obtained for use in the case present a question of fact for the district court, which possesses broad discretion in awarding costs. See Id. at 1148-49.

         III. Depositions Taken Also in This Case

         TWC challenges costs for 15 depositions. In its response, Sprint notes that six of the depositions (Casner, Gilliam, Hodge, M. Nelson, Patterson, Setter) were taken not only in the Delaware action but also in the present action involving TWC, as demonstrated by the caption on the first page of each transcript. TWC does not dispute that those depositions were also noticed in the present action. Moreover, the transcripts demonstrate that counsel for TWC appeared at four of the depositions, and TWC's counsel asked questions at three depositions. Thus, the premise for TWC's objection does not hold with respect to six of the 15 depositions.

         TWC nonetheless argues in its reply brief - albeit without citation to authority - that Sprint should be deemed to have waived this argument (that the six depositions were in fact taken in the present case) because Sprint failed to make that point in conferring with TWC and in briefing the issue to the Clerk. The Court declines to circumvent a decision on the merits in that way, however, as it is not persuaded that the equities entirely favor TWC on this issue. In short, TWC also contributed to any confusion. It is true that after TWC raised the issue, Sprint failed to appreciate that some of the invoices that referred only to the Delaware case were for depositions that also were taken in the Kansas cases; but TWC has not shown that it identified the particular invoices (out of 275 invoices submitted by Sprint for depositions) to which it objected. Then, in its brief to the Clerk, when TWC objected to costs for “over a dozen” depositions taken in the Delaware case, it specifically identified only one such deposition. Thus, Sprint responded only to TWC's general argument that costs should not be taxed for depositions taken only in the Delaware case.

         TWC then filed the instant motion, which includes a chart identifying the 15 challenged depositions (with the dates of the depositions, the cost amounts for the transcripts and videos, and the identifying numbers for particular invoices submitted by Sprint). TWC apparently did so, however, without checking to see whether those depositions were also noticed in the present case, and without noticing that its counsel had attended four of the depositions. This is despite the clue offered by the deposition dates, as the six depositions noticed in this action occurred prior to the end of fact discovery (somewhat contradicting TWC's argument that the depositions generally took place well after discovery had ended). Accordingly, the Court will not penalize Sprint by refusing to consider the actual merits of its claim for costs for these six depositions.[2]

         TWC also argues in its reply brief that Sprint has failed to satisfy its burden to show that the transcripts and videos for these six depositions were necessarily obtained for the present litigation. The Court rejects this argument. As it made clear in its motion, TWC did not object generally to such costs for depositions taken in the present case. These six witnesses were identified as persons with relevant information, and there is no suggestion that earlier depositions of the same witnesses made these depositions unnecessary. The Court in its discretion overrules TWC's objection to the Clerk's taxation of costs for these six depositions taken in the present case.

         IV. Depositions Taken Only in the Delaware Case

         Sprint does not dispute that the other nine challenged depositions (Ball, Barland, Houh, Kalinoski, Min, T. Nelson, Overy, Rao, Wicker) were taken only in the Delaware case, after the close of fact discovery in the present case, without notice to or participation by TWC[3], of witnesses who had already been ...


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