Opinion
3:18-cv-00755-SB
02-22-2021
DMITRI SIMONS, Plaintiff, v. COSTCO WHOLESALE CORPORATION, Defendant.
FINDINGS AND RECOMMENDATION
HON. STACIE F. BECKERMAN UNITED STATES MAGISTRATE JUDGE
Dmitri Simons (“Simons”) filed this action against Costco Wholesale Corporation (“Costco”), alleging claims of racial discrimination under Title VII of the Civil Rights Act (“Title VII”), 42 U.S.C. §§ 2000e-2000e-17, 42 U.S.C. § 1981, and state law. Costco prevailed at the summary judgment stage, and now Costco seeks an award of costs. For the reasons that follow, the Court recommends that the district judge grant in part and deny in part Costco's cost bill.
BACKGROUND
Simons filed a complaint and first amended complaint against Costco on May 2, 2018 and August 10, 2018, respectively. (ECF Nos. 1, 16.) In an Order dated January 18, 2019, the district judge adopted the Court's Findings and Recommendation (“F&R”), and dismissed Simons' state and federal discrimination claims with leave to amend. (ECF Nos. 17, 23, 25.)
After Simons timely filed a second amended complaint, Costco filed a second motion to dismiss on March 19, 2019. (ECF Nos. 26, 29.) The Court issued an F&R on July 29, 2019, recommending that the district judge deny Costco's second motion to dismiss (ECF No. 37), and the district judge adopted the F&R on November 18, 2019. (ECF No. 43.)
On February 19, 2020, the Court held a Fed.R.Civ.P. 16 conference, during which the parties agreed to case management deadlines, including a discovery deadline of June 1, 2020 and a dispositive motion deadline of July 17, 2020. (ECF No. 47.) On April 19, 2020, the Court entered a minute order granting the parties' joint request to extend the discovery deadline to July 31, 2020, and extend the dispositive motion deadline to September 15, 2020. (ECF No. 50.)
On September 15, 2020, Costco moved for summary judgment on Simons' claims. (ECF No. 53.) In support of its motion, Costco relied on (1) excerpts and exhibits from Simons' deposition; and (2) declarations and exhibits from four Costco managers. (ECF Nos. 54-58.) On October 16, 2020, after the summary judgment response deadline had expired, Simons filed a motion to defer consideration of Costco's motion for summary judgment, wherein Simons noted that he “require[d] additional discovery before he [could] properly respond to the motion, ” and that although Costco produced over one thousand “pages of documents related to [his] employment, ” Costco did not produce “documents or evidence for similarly situated Caucasian comparator employees.” (ECF No. 59 at 2.)
In an Order dated October 19, 2020, the Court denied Simons' motion to defer consideration of Costco's motion because the discovery deadline had expired on July 31, 2020, and Simons did not timely request an extension of the discovery deadline nor file any discovery motions. (ECF No. 61.) The Court also advised Simons that if he intended to file a response to Costco's motion for summary judgment, he should file a motion requesting an extension of time. (ECF No. 61.)
On November 16, 2020, after Simons failed to move for an extension of the deadline or file a response to the motion, the Court issued an F&R recommending that the district judge grant Costco's motion for summary judgment. (ECF No. 65.) On December 9, 2020, the district judge adopted the Court's F&R, without objection from Simons, and entered judgment in Costco's favor. (ECF Nos. 67 -68.)
Costco's bill of costs in the amount of $11, 363.24, and Simons' objections, followed. (ECF Nos. 69, 72.)
LEGAL STANDARDS
Federal Rule of Civil Procedure 54(d)(1) provides that “[u]nless a federal statute, these rules, or a court order provides otherwise, costs-other than attorney's fees-should be allowed to the prevailing party.”[ Fed.R.Civ.P. 54(d)(1). By its terms, “[Fed. R. Civ. P. 54(d)(1)] creates a presumption in favor of awarding costs to a prevailing party, but vests in the district court discretion to refuse to award costs.” Ass'n Mexican-Am. Educators (“AMAE”) v. California, 231 F.3d 572, 591 (9th Cir. 2000). “That discretion is not unlimited. A district court must ‘specify reasons' for its refusal to award costs.” Id. (quoting Subscription Television, Inc. v. S. Cal. Theatre Owners Ass'n, 576 F.2d 230, 234 (9th Cir. 1978)). “[A] district court's decision regarding costs is reviewed for abuse of discretion.” Powell v. Adlerhorst Int'l, Inc., No. 3:14-cv-01827-MO, 2017 WL 1371269, at *1 (D. Or. Apr. 12, 2017) (citing Draper v. Rosario, 836 F.3d 1072, 1087 (9th Cir. 2016)).
The parties do not dispute that Costco is the prevailing party here.
Section 1920 lists the specific items a prevailing party may recover as costs, including, as relevant here: “(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case; . . . [and] (4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case[.]” 28 U.S.C. § 1920(2), (4).
The Ninth Circuit has approved the following reasons for refusing to award costs to a prevailing party: (1) the losing party's limited financial resources; (2) the chilling effect on future civil rights litigants; (3) misconduct on the part of the prevailing party; (4) the closeness and difficulty of the issues in the case; (5) the merit of the plaintiff's case; and (6) the public importance of the issues in the case. See Darensburg v. Metro. Transp. Comm'n, No. 05-1597, 2009 WL 2392094, at *2 (N.D. Cal. Aug. 4, 2009).
DISCUSSION
Costco requests costs in the amount of $3, 393 for the transcription and video recording of Simons' deposition; $573.24 in document reproduction charges; and $7, 397 in Costco's third-party vendor charges for the collection, processing, and production of electronically stored information (“ESI”). (Mem. in Supp. of Def.'s Bill of Costs (“Def.'s Mem.”) at 3-5.) Simons objects to Costco's bill of costs, arguing that “[a]warding costs in this case would be unjustifiably punitive and chill future litigants from attempting to vindicate important civil rights.” (Pl.'s Obj. to Def.'s Bill of Costs (“Pl.'s Obj.”) at 3.) Simons also argues that Costco's “videographer fees and document reproduction and storage costs are not reasonable.” (Pl.'s Obj. at 3.)
I. COST AWARDS IN CIVIL RIGHTS LITIGATION
Simons argues that the Court should deny a cost award here because a large award could chill future civil rights litigation. Although the Court shares Simons' concern that forcing a civil rights plaintiff to pay a substantial cost bill might deter future litigants, the Court finds that Simons has not demonstrated that the Court should deny the cost bill on that ground here.
“[I]n civil rights cases, a court abuses its discretion when it awards costs against a losing plaintiff without considering the plaintiff's limited financial resources or ‘the chilling effect of imposing such high costs on future civil rights litigants.'” Pierce v. Santa Maria Joint Union High Sch. Dist., No. 2: 11-CV-09463-SVW, 2013 WL 12174404, at *4 (C.D. Cal. Jan. 29, 2013) (quoting AMAE, 231 F.3d at 593). “The losing party bears the burden of making a showing that the award of costs would be inequitable under the circumstances.” Mansourian v. Bd. Regents of Univ. Cal. at Davis, 566 F.Supp.2d 1168, 1171 (E.D. Cal. July 15, 2008) (citing Nat'l Info. Servs. v. TRW, Inc., 51 F.3d 1470, 1471 (9th Cir. 1995), overruled on other grounds by AMAE, 231 F.3d at 593)).
Simons has not met his burden of showing that a cost award would be inequitable here, for at least three reasons. First, Simons has not asserted that he will have to pay the cost award himself. See generally Kaufman v. Geico Indem. Co., No. 3: 13-cv-01932-HZ, 2015 WL 5167248, at *3 (D. Or. Sept. 3, 2015) (noting that a district court in this circuit previously rejected a “motion to deny costs in part because [the] plaintiff ‘ha[d] not argued that he-as opposed to his counsel, pursuant to a fee agreement-will have to pay the cost award himself'” (citing Jardin v. DATAllegro, Inc., 08-CV-1462-IEG (WVG), 2011 WL 4835742, at *4 (S.D. Cal. Oct. 12, 2011))).
Second, even if Simons will be required to pay the cost award, he has not submitted any evidence regarding his employment status, debts, or assets, which are the factors courts consider to determine whether a cost award would be inequitable because of the losing party's ability to pay. See Dickerson v. City of Portland, No. 3: 19-cv-01126-SB, 2021 WL 408091, at *3-4 (D. Or. Feb. 5, 2021) (holding that the plaintiff had not established circumstances sufficient to overcome the presumption in favor of awarding costs to the prevailing parties and noting that the plaintiff “ha[d] not submitted any evidence regarding his employment status, debts, or assets that show he would be ‘indigent' if the Court awarded costs to the Defendants”); cf. Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1248 (9th Cir. 2014) (finding that a $13, 956 cost bill requested by the employer defendant exceeded the plaintiff's annual earnings).
Finally and importantly, Simons has offered no explanation as to why he failed diligently to prosecute this case. Simons made serious allegations against Costco and litigated two rounds of pleading challenges, but then made no effort to conduct discovery and did not bother to respond to Costco's motion for summary judgment nor to this Court's F&R recommending entry of summary judgment for Costco. Federal litigation is expensive, and this case subjected Costco to significant attorneys' fees and costs of litigation. At whatever stage Simons determined his claims had no merit, he could have dismissed this case and stopped the accrual of litigation costs. He did not. Although the balance of equities sometimes tilts toward the civil rights plaintiff when apportioning litigation costs, that calculus changes where a civil rights plaintiff files a meritless case and then abandons the case while the defendant continues to accrue costs and fees.
In summary, the Court concludes that denying costs on the ground that Simons is a civil rights plaintiff is not warranted here.
II. COSTCO'S REQUESTED COSTS
A. Simons' Deposition
Costco seeks $3, 393 for the transcription and video recording of Simons' deposition. “Fees for printed or electronically recorded transcripts necessarily obtained for use in the case” are taxable costs. 28 U.S.C. § 1920(2); see also Frederick v. City of Portland, 162 F.R.D. 139, 142 (D. Or. 1995) (“Costs related to depositions are generally available to a prevailing party under 28 U.S.C. § 1920.”). It is well settled that depositions relied on at summary judgment are “necessarily obtained for use in the case.” See Yasui v. Maui Elec. Co., Ltd., 78 F.Supp.2d 1124, 1128 (D. Haw. 1999) (“[Plaintiff's] deposition was relied on to determine when [plaintiff] knew or should have known about his causes of action. The other depositions were examined to determine whether genuine issues of fact existed. Accordingly, [defendant] is entitled to $3, 367.44 in costs for its deposition transcripts.”).
Costco paid $1, 565 to record Simons' deposition by video and $1, 828.10 for the transcription of Simons' deposition, which included a $150 charge for a “Video Streaming (SetUp).” (See Def.'s Bill of Costs at 1; Decl. of Ryan Kunkel in Supp of Def.'s Bill of Costs (“Kunkel Decl.”) Ex. A at 1-2.) Simons objects to the $1, 565 in videographer charges because Costco did not use the video at the summary judgment stage and “could have bought multiple video cameras for the price of hiring a videographer[.]” (Pl.'s Obj. at 3.) Simons also suggests that the video streaming set-up was not necessarily obtained for use in the case. (See Pl.'s Obj. at 4, requesting, in the alternative to the denial of costs, that the Court award $1, 678.10, i.e., the transcription invoice of $1, 828.10 minus the $150 charge for the video streaming set-up.)
The Court agrees that the written transcript of Simons' deposition was necessarily obtained for use in the case, as Costco relied on the transcript at summary judgment. However, the Court recommends that the district judge deny the cost of the videographer to record Simons' deposition. Costco justifies the videographer's charge by noting that (1) Simons did not object to Costco's deposition notice, which reflected that a videographer and stenographer would be present at Simons' deposition; and (2) Simons' race discrimination allegations “involved ‘he said/she said' allegations, making his demeanor and credibility particularly important.” (Def.'s Reply at 4.) First, Simons' failure to object to Costco's deposition notice is not dispositive of how the Court should apportion the cost of the videographer. Second, Costco fails adequately to explain why Simons' “deposition demeanor was such an important issue that the video version, in addition to the written version, of [his] deposition was necessary.” Pullela v. Intel Corp., No. 08-cv-01427-AC, 2010 WL 3361089, at *3 (D. Or. Aug. 25, 2010). As the court explained in Pullela, any witness's demeanor is important, but that principle should not automatically convert a videographer's fee into a recoverable cost:
The demeanor of any witness, including the plaintiff in an employment lawsuit, is important in any case. That general principle, however, should not automatically convert a videographer's fee into a recoverable item of cost where a court reporter also attended and transcribed the deposition and the party seeking to recover the videographer's cost does not offer one or more reasons specific to the case to justify an award of costs for both items. Routinely allowing recovery of the cost incurred for both the court reporter's transcript and a separate videographic record of depositions duplicates deposition costs without purpose. Accordingly, the court denies [the defendant's] request for this cost item.Id.; see also Rhodehouse v. Ford Motor Co., No. 2: 16-cv-01892-JAM-DMC, 2019 WL 699947, at *2 (E.D. Cal. Feb. 20, 2019) (excluding cost of videotaping deposition from cost bill where “Defendant has not explained why it needed to videotape the depositions”); cf. Genuine Enabling Tech. LLC v. Nintendo Co., Ltd., No. C 19-00351-RSM, 2021 WL 211536, at *3 (W.D. Wash. Jan. 21, 2021) (“[C]ourts in this district have awarded costs for both the videotape and the transcript of an important witness deposition where the witness may not be compelled to appear at trial.”) (citations omitted).
For these reasons, the Court recommends that the district judge award Costco $1, 678.10 for the original and certified copy of Simons' deposition transcript, but deny Costco's request for $1, 565 in videographer fees and $150 for a video streaming set-up.
B. Copy Costs
Costco seeks $573.24 for printing and copying Simons' employment records and investigative reports regarding Simons' misconduct. (Def.'s Mem. at 4.) Costco's counsel explains that “[d]ocument reproduction is an in-house service that Stoel Rives provides to clients and thus there are no invoices reflecting these charges except on [privileged] client bills.” (Kunkel Decl. ¶¶ 2, 5; Def.'s Reply at 5.) Simons objects to this charge given the lack of an invoice. (Pl.'s Obj. at 3.)
“Copying and printing costs are taxable under [28 U.S.C. § 1920].” Dixon v. Haw. Dep't of Educ., No. 16-00110, 2018 WL 3371589, at *3 (D. Haw. June 20, 2018). However, “[s]ection 1920 does not contemplate an award of costs incurred for in-house copying expenses.” Teicher v. Regence Health & Life Ins. Co., No. 06-CV-1821-BR, 2008 WL 5071679, at *11 (D. Or. Nov. 24, 2008) (citing Frederick, 162 F.R.D. at 142 (“[T]he balance of defendants' request [for costs] is inappropriate as it represents costs associated with the in-house photocopying of defense counsel.” (citing cases))); see also Hollowell v. Kaiser Found. Health Plan of the Nw., No. 3: 12-cv-2128-AC, 2014 WL 6750325, at *4 (D. Or. Dec. 2, 2014) (“Recoverable copying costs also do not include costs associated with in-house photocopying for use by counsel.”) (citing Frederick, 162 F.R.D. at 144).
Even if the Court were to allow in-house copy costs, Costco has not demonstrated that “the copies [we]re necessarily obtained for use in the case” (28 U.S.C. § 1920(4)), as opposed to for the convenience of counsel. See Sterling Sav. Bank v. Sequoia Crossing, LLC, No. 09-555-AC, 2010 WL 3210855, at *9 (D. Or. Aug. 11, 2010) (“Courts in this district have refused to award [reproduction] costs where attorneys fail to clarify what portion of the copying fees was necessarily obtained for use in the case and what portion was used merely for the attorneys' convenience.”) (citations omitted); see also Robertson v. Standard Ins. Co., No. 14-cv-01572-HZ, 2016 WL 406343, at *8 (D. Or. Jan. 31, 2016) (noting that the defendant opposed a request for copying and printing fees because the plaintiff “fail[ed] to provide any detail or invoices to explain why the copies were necessary, ” and finding no basis to award the costs because counsel did not explain “what materials were copied or why it was necessary to copy 2, 126 pages”).
Although the Court does not doubt that some portion of Costco's in-house printing and copy expenses were necessary for use in this litigation (e.g., printing exhibits for use at Simons' deposition), some portion of those print and copy jobs were also necessarily for the convenience of counsel (e.g., printing documents to prepare for the deposition). (See Def.'s Mem. at 4 (“Among other things, Costco's counsel relied upon these documents to review documents for production in accordance with Local Rule 26-7, to prepare for plaintiff's deposition, and to bring copies of exhibits to plaintiff's deposition.”).) The Court cannot determine from the lump sum cost bill which copy costs were necessary and which were merely for convenience.
For these reasons, the Court recommends that the district judge deny Costco's request for $573.24 in copying and printing costs.
C. ESI
Costco also “seeks to recover the $7, 397 in costs it incurred from the third party it engaged to store electronic discovery materials.” (Def.'s Mem. at 5.) Costco argues that these costs were necessary in this case because “there was a significant volume of data spanning [Simons'] three decades of employment with Costco, large files related to several longtime employees who [Simons] alleged were potential comparators, and several lengthy files related to [Simons'] misconduct.” (Id.) Costco also argues that although Simons “did not serve document requests, Costco was obligated to conduct a reasonable search for and produce documents in response to its discovery obligations . . . and in order to prepare for [Simons'] deposition and summary judgment briefing.” (Def.'s Reply at 5.) Simons objects to this request on the ground that Costco failed to submit an invoice, Costco “should otherwise store [electronic information] in the usual course of business, ” and Costco's vendor's declaration lacks sufficient detail. (Pl.'s Obj. at 3.)
“In the era of electronic discovery, courts have held that electronic production of documents can constitute ‘exemplification' or ‘making copies' under [28 U.S.C. § 1920(4)].” In re Ricoh Co., Ltd. Pat. Litig., 661 F.3d 1361, 1365 (Fed. Cir. 2011) (applying Ninth Circuit law in interpreting 28 U.S.C. § 1920). “However, taxable costs are ‘limited to relatively minor, incidental expenses as is evident from [28 U.S.C. § 1920].'” Genuine Enabling Tech., 2021 WL 211536, at *1 (quoting In re Online DVD-Rental Antitrust Litig., 779 F.3d 914, 926 (9th Cir. 2015)). As a result, “not every task associated with electronic discovery is taxable.” Id. (quoting Allvoice Devs. U.S. LLC v. Microsoft Corp., No. 10-2102-RAJ, 2015 WL 12659928, at *3 (W.D. Wash. July 15, 2015)); see also Bonillas v. United Air Lines Inc., No. C- 12-06574(EDL), 2014 WL 7247215, at *1 (N.D. Cal. Dec. 19, 2014) (“Courts grappling with the language of [28 U.S.C. § 1920] as it applies in the modern era of ESI must make difficult decisions about whether various tasks related to ESI are more akin to the traditional copying of paper documents and therefore fall on the compensable side of the line, or whether they are preproduction tasks more akin to paper file retrieval and organization in preparation for copying which are non-compensable.”) (citations omitted); Plantronics, Inc. v. Aliph, Inc., No. C 09-01714 WHA (LB), 2012 WL 6761576, at *10 (N.D. Cal. Oct. 23, 2012) (“The issue with [ESI] is what kinds of costs attributable to producing information are analogous to ‘exemplification and the costs of making copies' (and not for the parties' convenience or attributable to ‘intellectual effort' involved in document production) such that they are taxable under section 1920(4).”).
David White (“White”), the director of Costco's third-party vendor, Alix Partners LLP, submitted a declaration in support of Costco's cost bill. White's declaration reflects that Alix Partners is a litigation support service provider that worked with Costco to gather its “electronically stored data, process it, host it, and assist outside counsel with the searching and production of that data in discovery.” (Kunkel Decl. Ex. B at 1.) White's declaration also reflects that the “total costs of those services, which were actually and necessarily performed at the request of Costco's legal counsel related to Costco's defense in this case, is $7, 397.00.” (Kunkel Decl. Ex. B at 2.)
Although Costco submitted an invoice reflecting its ESI costs and declarations in support, it did not include an itemization of the ESI costs. Cf. In re Online DVD-Rental, 779 F.3d at 928 (noting that the prevailing party's ESI vendor “identified 44 different charges appearing on [its] invoices, and combines those charges into 21 groups[, ]” and “[f]or each of the 21 groups, [the vendor] provided a brief description of the services to which the charges refer”). As the Ninth Circuit has explained, “[t]he proper application of a narrowly construed [28 U.S.C. § 1920(4)] requires that the tasks and services for which an award of costs is being considered must be described and established with sufficient specificity, particularity, and clarity as to permit a determination that costs are awarded for [exemplification or] making copies.” In re Online DVD-Rental, 779 F.3d at 928. Generic statements in support of a cost bill “are unhelpful in determining whether those costs are taxable.” Id. (quoting In re Ricoh, 661 F.3d at 1368). Without the required itemization, the Court cannot determine which of its ESI costs Costco incurred for “exemplification and the costs of making copies of any materials” (28 U.S.C. § 1920(4)), and which of the costs were for non-taxable tasks. See, e.g., Left Coast Wrestling, LLC v. Dearborn Int'l LLC, No. 3: 17-cv-00466-LAB-NLS, 2018 WL 2948532, at *2 (S.D. Cal. June 12, 2018), adopted 2018 WL 3032585 (S.D. Cal. June 19, 2018) (“Courts have allowed e-discovery costs for scanning or converting electronically-stored files into usable formats because such tasks fall within 28 U.S.C. § 1920(4) . . . . However, courts have not allowed recovery of costs for the housing of electronic data or for e-gathering and e-processing costs akin to the intellectual effort involved in the production of documents or the research, analysis, and distillation of data.”) (citations omitted); Hollowell, 2014 WL 6750325, at *5 (denying ESI costs where “[t]he documentation for the requested copying costs contains only limited detail and fails to apprise the court of the reasonable necessity of the copies and electronic files to the case”); Old Navy, LLC v. Ctr. Devs. Or., LLC, No. 3: 11-472-KI, 2012 WL 3261413, at *5 (D. Or. Aug. 8, 2012) (denying ESI and copy costs where the prevailing party provided “no documentation with which to assess the cost per page, the cost for labor, and whether any of the copies were made for the convenience of the attorneys”) (citations omitted).
For these reasons, the Court recommends that the district deny Costco's request for $7, 397 in ESI-related costs. See Left Coast Wrestling, 2018 WL 2948532, at *2 (“Without further documentation or testimony to demonstrate that [the ESI] charges . . . were copying costs that fall within 28 U.S.C. § 1920(4) and may [be] awarded as a taxable cost[], the undersigned recommends these costs be excluded.”); Plantronics, Inc., 2012 WL 6761576, at *17 (“As a separate ground for its decision, the court exercises its discretion and holds that [the defendant] did not itemize the e-discovery processing costs with enough detail to establish that the court should award it any of the ESI processing costs.”).
CONCLUSION
For the reasons stated, the Court recommends that the district judge GRANT IN PART and DENY IN PART Costco's bill of costs (ECF No. 69), and award Costco its costs in the amount of $1, 678.10.
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.