[00:00:44] Speaker 01:
Okay, the next case is number 14, 1697, Deere and Company against Yurok LLC.

[00:00:52] Speaker 01:
Mr. Anthony.

[00:00:57] Speaker 02:
Thank you, Your Honor.

[00:00:58] Speaker 02:
Good morning, Your Honors.

[00:00:59] Speaker 02:
My name is Stephen Anthony, and I represent Deere and Company.

[00:01:02] Speaker 02:
I would like to reserve five minutes of my time.

[00:01:04] Speaker ?:
Okay.

[00:01:05] Speaker 02:
I tried the case with Mr. McKelvey, and if you agree with Mr. McKelvey's arguments, my position here will become irrelevant.

[00:01:13] Speaker 02:
I'm here to argue the cost appeal.

[00:01:17] Speaker 02:
Deere appeals, Judge Woolley's, taxation of costs against Deere on a number of items because the judge's ruling and the defendant's position trying to support that ruling is contrary to the law as is reflected in essentially a tide of cases, particularly since 2012.

[00:01:36] Speaker 02:
There's essentially a watershed in the law interpreting

[00:01:41] Speaker 02:
section 1920 parenthesis.

[00:01:44] Speaker 04:
Would you say the law is becoming more expensive in allowing taxable costs?

[00:01:48] Speaker 02:
I would say the opposite.

[00:01:50] Speaker 02:
I would say the law is becoming, in light of the Taniguchi decision, which interpreted a different subsection of section 1920 of Title 28, and cases that have come out slightly before the Taniguchi decision of the Supreme Court and since then, there's been a growing recognition that the categories of costs that are taxable

[00:02:12] Speaker 02:
including particularly costs relating to ESI, electronically stored information, trial technologists, and the cost of making copies are narrowly defined.

[00:02:25] Speaker 02:
The Taniguchi decision, of course, concerned a different subsection of that statute relating to the definition of interpreters, but it's instructive what the Supreme Court concluded in the Taniguchi case, because the Supreme Court cautions that costs that are taxable under Section 1920

[00:02:42] Speaker 02:
are intended to be narrow in scope that are limited to relatively minor incidental expenses.

[00:02:48] Speaker 04:
Wasn't it just talking or addressing their copying costs in Teneguchi?

[00:02:56] Speaker 02:
Well, no.

[00:02:57] Speaker 02:
In Teneguchi was addressing the cost of interpreters.

[00:03:01] Speaker 02:
And so, defendants have argued to this court that

[00:03:05] Speaker 02:
Deer's reliance on Taniguchi shouldn't be taken very seriously because that was a case of the Supreme Court that dealt with a different provision of the statute.

[00:03:14] Speaker 02:
And we disagree because we think that that's not really ascribing appropriate deference to a decision of the Supreme Court.

[00:03:22] Speaker 02:
The Supreme Court's decisions really, unlike the decisions of intermediate federal courts, often are, because the Supreme Court's limited docket, often set forth

[00:03:34] Speaker 02:
uh... standard that will work for five without limiting a case to its particular fact but it's not just kind of gucci that that that i think has influenced the the law going forward but there's an entire line of cases in a number of circuits uh... exemplified most notably by the third circuit's decision in a case called race tires

[00:03:55] Speaker 02:
Race tires actually came out a couple of months before Teneguchi, but many courts have observed that the race tires approach, which was to be very limited about the categories of costs that are covered by Section 1920 forensics.

[00:04:09] Speaker 04:
Is Iowa in the Eighth Circuit?

[00:04:11] Speaker 02:
No, that was the third.

[00:04:11] Speaker 02:
Race tires is the Third Circuit decision.

[00:04:13] Speaker 02:
No, Iowa.

[00:04:14] Speaker 02:
I mean, you're in the Eighth Circuit.

[00:04:16] Speaker 04:
Yes, Your Honor, I apologize.

[00:04:17] Speaker 04:
What about the slag and wet?

[00:04:21] Speaker 02:
So Slaggin-Witt is a case that came down considerable length of time prior to the Teneguchi decision.

[00:04:33] Speaker 02:
Slaggin-Witt goes back all the way to 1995 and essentially approves the taxation of costs for a deposition of changes.

[00:04:45] Speaker 04:
It gives broad discretion to the district court to assign taxable costs, doesn't it?

[00:04:52] Speaker 02:
It does, but I don't believe that would be the position of the Eighth Circuit were it to consider the case law today.

[00:05:00] Speaker 03:
Well, that raises a question that I'd like your advice on, which is what is our standard of review over this cost decision?

[00:05:12] Speaker 02:
Okay, so there's two parts to it.

[00:05:15] Speaker 02:
First, you have to determine whether the categories of costs that the defendant sought in the court awarded

[00:05:21] Speaker 02:
can permissibly be comprised within section 1920, p.

[00:05:25] Speaker 02:
4.

[00:05:26] Speaker 02:
And that's a decision, that's a matter of statutory interpretation, that's a decision that's made on a de novo basis.

[00:05:33] Speaker 02:
Second, if and only if this court determines that these categories of costs can be taxable, and we maintain they are not, then and only then would you go to the second step, which would be to say, was the district court's taxation of them an abuse of discretion?

[00:05:49] Speaker 02:
We don't even get there, because we're still at the first step of statutory interpretation.

[00:05:55] Speaker 02:
And support for my framework that I just gave, Your Honor, is in this circuit's case in In re Rico, which sets out those two steps.

[00:06:04] Speaker 02:
So while it is true that defendants in their briefs argue very strongly for the exercise of discretion here, we respectfully maintain that this is a matter of statutory interpretation.

[00:06:18] Speaker 04:
and and and you don't even get to the discretion uh... it was the eight circuit and second uh... slag and white construed section nineteen twenty and you're telling the court that that's an old case and there's been law since then so what about stanley versus cattrall that's also an eight circuit case it's decided this year and it seems to me that it gives pretty

[00:06:47] Speaker 04:
broad discretion to the district court as well.

[00:06:50] Speaker 04:
In fact, in that case, all taxable costs were appealed.

[00:06:55] Speaker 02:
I agree that the district court is entitled, Your Honor, to an exercise of discretion, but it is still the case, nonetheless, under Taniguchi and under the widely applied standards that are applied in a growing number of circuits.

[00:07:14] Speaker 02:
that the district court does not have discretion to award costs that are not covered by the statute.

[00:07:22] Speaker 02:
The discretion is the second step.

[00:07:24] Speaker 02:
So there are cases in which appellate courts, including the Eighth Circuit, have emphasized the discretion of the district court.

[00:07:33] Speaker 02:
But that doesn't get you past the question of what is the interpretation of statutory terms.

[00:07:38] Speaker 02:
So what are we talking about?

[00:07:39] Speaker 02:
The terms exemplification, the term making copies

[00:07:44] Speaker 02:
and the term necessarily obtained for use in the case.

[00:07:48] Speaker 03:
Just to be clear, Mr. Anthony, if we should disagree with your reading of the statute and come to the conclusion that the district court was under the circumstances within the statutory ambit, then you lose, is that right?

[00:08:06] Speaker 03:
Because he has the discretion at that point.

[00:08:11] Speaker 02:
We think on this record, this court could find an abuse of discretion.

[00:08:14] Speaker 02:
But our argument in our briefs, and my argument before your honor, is that Judge Woolley taxed costs that are not covered by the statute.

[00:08:25] Speaker 03:
But let me say a further thing.

[00:08:26] Speaker 03:
I understand your point, but you're not answering my question.

[00:08:29] Speaker 03:
Or maybe you did.

[00:08:30] Speaker 03:
basically, his breadth of discretion would cover what he did if he had the authority to do it.

[00:08:40] Speaker 03:
Is that fair?

[00:08:43] Speaker 02:
For some of these costs, yes, but not all.

[00:08:47] Speaker 02:
And one example I would give of that, Your Honor, is with regard to hosting and storage costs.

[00:08:57] Speaker 02:
Our argument, as I've said, is they're not covered by the statute.

[00:09:01] Speaker 02:
But I understand you're asking me, what about the discretion point?

[00:09:04] Speaker 02:
Well, the clerk of the court, and therefore Judge Woolley in following the clerk of the court, handled storage costs two different ways for two different phases in this case for no reason.

[00:09:20] Speaker 02:
And the two phases were the period of time prior to this court's previous opinion in this case and then the period of time after remand for the trial that Mr. McKelvey described to you.

[00:09:32] Speaker 02:
The court awarded

[00:09:34] Speaker 02:
storage cost.

[00:09:36] Speaker 02:
These are monthly server fees that lawyers pay to companies that store data for the previous period, before the previous appeal.

[00:09:48] Speaker 02:
But then, for the second period of time, the clerk recognizing that there was a local district court decision called Hallmark, considered in our briefs, that disallows that.

[00:10:00] Speaker 02:
The district court disallowed it for the second period of time.

[00:10:03] Speaker 02:
Now, on appeal, the defendant in particular, Great Plains in its brief argues, well, there you go.

[00:10:10] Speaker 02:
That's an exercise of discretion.

[00:10:12] Speaker 02:
The court said sometimes they get them, sometimes they don't.

[00:10:15] Speaker 02:
That's a matter of discretion.

[00:10:16] Speaker 02:
And we argue that's not even conceivably a valid exercise of discretion.

[00:10:20] Speaker 02:
That's an abuse of discretion.

[00:10:22] Speaker 02:
If treating like situations differently without a reason,

[00:10:27] Speaker 02:
is the very picture of an abusive discussion.

[00:10:29] Speaker 03:
So to go to your... So if they were, if the court was right, the clerk was right in allowing costs for the pre...

[00:10:37] Speaker 03:
They're entitled to costs for the post storage, is that what you're arguing?

[00:10:43] Speaker 02:
It's not what I'm arguing.

[00:10:45] Speaker 02:
It won't surprise you to know I'm arguing the opposite of that.

[00:10:50] Speaker 02:
So just to be clear, our argument is that those storage costs are not taxable under the statute to begin with, but surely it is an abuse of discretion to give them for one period of time and not for another.

[00:11:04] Speaker 02:
Well, I understand the court to be focusing very much on the district court's discretion.

[00:11:10] Speaker 02:
I would really urgently direct this court to the number of cases that we've cited in our briefs, including, among other things, decisions of the lower courts within the Eighth Circuit.

[00:11:24] Speaker 02:
Cases like the Amana Society case, I've mentioned the Hallmark Cards case, and there's also one called Chavis Van that emphasize

[00:11:34] Speaker 02:
in in the sort of post 2012 world that there are very limited categories of costs that can be awarded and it's not always intuitive if it's tempting to think that for example any costs associated with electronically stored information or ESI are somehow related to copying but the court's decisions in

[00:12:03] Speaker 02:
numerous circuits, the third circuit decision, and race tires, the fourth circuit decision cited in our brief, have made clear repeatedly that making copies is actually a limited category of items.

[00:12:24] Speaker 02:
So in race tires, the court points out essentially five steps that are associated with this so-called ESI, collecting and preserving the data.

[00:12:33] Speaker 02:
processing and indexing the data, keyword searching the data.

[00:12:38] Speaker 02:
Those three steps under race tires, those are not taxable.

[00:12:43] Speaker 02:
Only the latter two steps of converting electronic files to an agreed format such as TIFF and scanning paper copies are chargeable.

[00:12:54] Speaker 02:
So under race tires and also the Fourth Circuit's decision in country Vintner, a case I was struggling to remember the name of a moment ago, and a number of decisions of the lower courts in the Eighth Circuit since 2012, those preliminary steps, which can be very, very expensive, are not taxable.

[00:13:15] Speaker 02:
They may be important.

[00:13:16] Speaker 02:
And the decisions of a number of courts have recognized that

[00:13:22] Speaker 02:
these may be things that lawyers have to do in order to make the discovery readily searchable or usable or practical, but that does not make them taxable costs.

[00:13:38] Speaker 02:
What race tires and the vast majority of decisions since makes clear is that the really only costs that are associated with

[00:13:49] Speaker 02:
The act of copying, sort of the functional equivalent of copying paper documents are taxable.

[00:13:56] Speaker 02:
I'd like to reserve the remainder of my time for questions.

[00:13:58] Speaker 01:
Okay.

[00:13:59] Speaker 01:
Thank you, Mr. Anthony.

[00:14:01] Speaker 01:
Mr. Edge.

[00:14:05] Speaker 00:
May I please support Scott Haney on behalf of the Appalachians.

[00:14:10] Speaker 00:
Unsurprisingly, Your Honor, we disagree with Mr. Anthony's characterization of Tana Butte as being a watershed event.

[00:14:17] Speaker 00:
It's true that courts have, throughout the years, exercised their discretion in awarding costs, and in doing so have analyzed the scope of 28 U.S.C.

[00:14:28] Speaker 00:
Section 1920, stuff paragraph 4.

[00:14:31] Speaker 00:
And kind of in support of that argument, if you look at the Supreme Court's ruling in Crawford Fidding, which was a 1987 case, the court in that case argued that the discretion given to district judges by Rule 54D, which is the federal rule allowing the award of cost to a prevailing party,

[00:14:47] Speaker 00:
The tax cost should be sparingly exercised with reference to expenses not specifically allowed by the statute.

[00:14:54] Speaker 00:
And they're referring to the statute, 1920 sub-paragraph 4, which is an issue in this case, which relates to two categories of costs, one of which is exemplification and the other which relates to making copies.

[00:15:08] Speaker 00:
The cases that dear relies on post-Tanaguchi, post-2012,

[00:15:15] Speaker 00:
One of which is in-rate country ventner, that's the 4th circuit case that Mr. Anthony mentioned, as well as race tires.

[00:15:22] Speaker 00:
Those cases are distinguishable on the fact that there was no ESI agreement in those cases.

[00:15:29] Speaker 00:
In those cases, the parties just produced documents without any specification as to, for example, the specific types of metadata.

[00:15:36] Speaker 04:
How many ESI agreements were reached in this case?

[00:15:40] Speaker 00:
There's one ESI agreement, Your Honor.

[00:15:41] Speaker 04:
And it guided the entire litigation?

[00:15:44] Speaker 00:
Yes, Your Honor.

[00:15:44] Speaker 04:
Both the prior to appeal to us and then afterwards?

[00:15:48] Speaker 00:
yes your honor but the bill the only new party post remand was with my client Alamo incorporated uh... they were added to the trial roughly eight months before trial and when moving forward in the case we got a copy of the of the E.S.I.

[00:16:02] Speaker 00:
order from the original case and proceeded according to it so there was one order and that said uh... part of the record at A1281 it's an email from counsel for Deer to the various counsel for the other defendants memorializing the final agreement between the parties

[00:16:19] Speaker 03:
Mr. Haney, even if we were to agree with your view that the statute should be broadly read, how do you respond to Mr. Anthony's point about discontinued storage?

[00:16:33] Speaker 03:
Discontinued storage costs, Your Honor?

[00:16:37] Speaker 00:
Yes.

[00:16:38] Speaker 00:
Well, respectfully, the defendants do indeed concede that there were some storage costs that are awarded that should probably not have been awarded based upon

[00:16:47] Speaker 00:
discourse decision in CBT Flint in which Judge O'Malley wrote a dissent, but the majority decided to stage two discovery costs, and that would relate to costs related to storage, deduplication, and the like, should not be recoverable.

[00:17:03] Speaker 00:
There's also a case in the A circuit Hallmark cards suggesting the same.

[00:17:07] Speaker 00:
So we would concede that certain of these storage costs that were awarded to the defendants of the district court case should not have been awarded.

[00:17:15] Speaker 04:
How about project management support or the bates numbering.

[00:17:24] Speaker 00:
Your honor, I believe that the prevailing case law would suggest that in the invoices that I've reviewed, the project management in and of itself would not be as a cost.

[00:17:38] Speaker 00:
However, if that was involved in database setup, for example, in stage one when the hard drives from the custodians of the different parties were being imaged and the database setup, those costs would indeed be recoverable under CBT Flint.

[00:17:54] Speaker 00:
Now if it were just project management, for example, maintaining the database during like a stage two situation where they're just monitoring, deduplicating, culling documents for privilege, those costs would not be awarded.

[00:18:07] Speaker 00:
So I think it's a situational awareness type issue where if it was during stage one framework where you're actually copying, scanning, extracting metadata, those would be awardable.

[00:18:20] Speaker 00:
If it was stage three where

[00:18:22] Speaker 00:
The vendor was preparing the documents to be copied to a CD to be delivered, for example, to deer as part of the document production.

[00:18:28] Speaker 00:
Those would be a wordable.

[00:18:30] Speaker 00:
If it was stage 2, they would not under this court's law.

[00:18:37] Speaker 03:
Reasons I won't go into, I'm just not inclined to go through all the billings item by item in this case.

[00:18:44] Speaker 03:
I understand Your Honor.

[00:18:46] Speaker 03:
Are there any, if Mr. Anthony were given the time, but we all have to be at dinner sometimes.

[00:18:54] Speaker 03:
Are there any other concessions you would like to offer up that would expedite the outcome of this case?

[00:19:03] Speaker 03:
Should we rule in your favor, which I'm not declaring we're doing by any means?

[00:19:09] Speaker 00:
Your Honor, the storage costs are the primary cost to which defendants would concede.

[00:19:14] Speaker 00:
I think there are a few more on the copying front, and I can read you the record numbers.

[00:19:18] Speaker 00:
Please don't.

[00:19:19] Speaker 00:
Yes, sure.

[00:19:20] Speaker 00:
And that would relate to, for example, copies from pages of Anatomy of a Patent Case.

[00:19:24] Speaker 00:
I think that Deere mentioned in the principal brief of pages seven through nine.

[00:19:30] Speaker 00:
And then charges for books on agricultural equipment.

[00:19:33] Speaker 00:
Those would be the other two copying items that defendants would concede on.

[00:19:39] Speaker 01:
One of the things that we often notice in the arguments about costs is that it must be costing somebody

[00:19:47] Speaker 01:
much more than could conceivably be recovered if we were to change the system.

[00:19:54] Speaker 01:
And this starts to look the same way.

[00:19:56] Speaker 01:
I gather you have not formally produced a revised cost presentation.

[00:20:04] Speaker 01:
Is that right?

[00:20:04] Speaker 00:
We have not, Your Honor.

[00:20:06] Speaker 00:
Not since the case was decided by the jury.

[00:20:09] Speaker 03:
I assume you all were pro bono on this cost business.

[00:20:14] Speaker 00:
Perhaps I'm mistaken.

[00:20:15] Speaker 00:
Unfortunately, no, Your Honor.

[00:20:21] Speaker 00:
But regardless, Your Honor, I think that the cases are clear.

[00:20:29] Speaker 00:
Courts, both at the Eighth Circuit and at the Federal Circuit level, have awarded costs for copying.

[00:20:36] Speaker 00:
In fact, the case that derails on NRA country veterinary cites to both race tires and NRA RICO patent litigation, which was this court's case, suggesting that if there was indeed

[00:20:49] Speaker 00:
an ESI agreement in place, that those costs could be allowable as the cost of making copies.

[00:20:55] Speaker 00:
So we are entering a more modern age in which copying is no longer taking a hard copy from a custodian's office and running it through the copy machine.

[00:21:05] Speaker 00:
Instead, more and more we're going towards electronic discovery, which is obviously presented to this court and many courts' problems with where do you draw the line.

[00:21:13] Speaker 00:
But I think that line drawing has been done.

[00:21:15] Speaker 00:
I think courts are adhering to the admonishments from Taniguchi are narrowly interpreting the statute.

[00:21:24] Speaker 00:
This court did so on CBT Flint by removing the possibility of awarding calls for stage two document discovery for the Sedona conference.

[00:21:34] Speaker 00:
And lower courts are doing the same.

[00:21:37] Speaker 01:
uh... mister it's not to be the changes in case of being support here's position uh... here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's here's

[00:22:04] Speaker 00:
The defendants in the district court case, the appellees here, would submit a list of the items that they think should not have been awarded from a storage cost basis.

[00:22:15] Speaker 00:
We would present that to the clerk of the district court.

[00:22:18] Speaker 00:
Would that include the copy charges that you mentioned?

[00:22:22] Speaker 00:
Yes, Your Honor, as well as those copy charges.

[00:22:24] Speaker 00:
And we would withdraw our demand for those costs.

[00:22:27] Speaker 00:
But you're right, Judge Newman, the court did exercise this discretion.

[00:22:32] Speaker 00:
Just as an example, my client Alamo submitted a receipt for copy charges, which the court reduced by 50% because he didn't feel like the invoice was sufficiently explanatory of what those charges encompassed.

[00:22:44] Speaker 01:
There is no discretion to commit an error.

[00:22:47] Speaker 00:
That's correct, Your Honor.

[00:22:48] Speaker 00:
That's correct.

[00:22:49] Speaker 00:
The other costs that were awarded in the Clay case clearly fall within

[00:22:52] Speaker 00:
the statutory confines of section 19, 20, subparagraph 4, and the court did not abuse its discretion in awarding those costs, we would simply concede to correct what we interpret to be an overreaching demand on our part for these storage costs.

[00:23:09] Speaker 01:
And then we'll see you both back here arguing about what's left.

[00:23:14] Speaker 00:
Hopefully not, Your Honor.

[00:23:15] Speaker 00:
Hopefully we can come to an agreement.

[00:23:20] Speaker ?:
Okay.

[00:23:21] Speaker 01:
All right.

[00:23:22] Speaker 01:
Thank you, Mr. Henning.

[00:23:23] Speaker 00:
Are there any more questions?

[00:23:31] Speaker 01:
Mr. Henning?

[00:23:32] Speaker 01:
Thank you.

[00:23:34] Speaker 01:
Any chance of the two of you working this out?

[00:23:38] Speaker 01:
Or perhaps you can try and figure this out after the argument?

[00:23:43] Speaker 02:
I don't think so.

[00:23:45] Speaker 02:
But I appreciate the court's suggestion and I'll take that up with our client.

[00:23:48] Speaker 02:
But I'll say this.

[00:23:49] Speaker 02:
I think Mr. Haney's concessions, admirable in this court, illustrate a little bit of the way we were treated in the district court.

[00:23:58] Speaker 02:
We made these arguments in front of Judge Woolley in the district court.

[00:24:02] Speaker 02:
So I would append this argument to the argument made by my law partner and trial partner, Mr. McKelvey, about the way we were treated in this report.

[00:24:10] Speaker 02:
These very items that Mr. Haney, with admirable frankness, has acknowledged that were inappropriate, were items we challenged, and Judge Woolley tacked us on.

[00:24:21] Speaker 02:
One footnote, Mr. Haney cited a Federal Circuit case, CBT, Flynn Partners, and it's thoroughly briefed.

[00:24:29] Speaker 02:
I would just note that that, by its terms, goes off on a particular provision and principle of 11th Circuit law, which would not apply here, so it's distinguishable.

[00:24:39] Speaker 02:
But I want to add one thing, because Mr. Haney talked about the ESI agreement.

[00:24:44] Speaker 02:
And that's an important point, and it's argued in the party's brief.

[00:24:47] Speaker 02:
An ESI agreement is not the same thing as a cost shifting agreement.

[00:24:52] Speaker 02:
They're very different as the courts have recognized.

[00:24:55] Speaker 02:
And one of the cases, in our brief, a couple of cases, the Plantronics case in the Northern District of California and the Life Plans case in the Northern District of Illinois have recognized this.

[00:25:06] Speaker 02:
Because it is one thing to say that the parties have reached some kind of an agreement on how apportioned costs.

[00:25:12] Speaker 02:
which happens in some cases, for example, the In re Rico case in the Federal Circuit.

[00:25:17] Speaker 02:
It is another thing entirely where you have a situation as in the Deer versus Bush hog case, where there's simply an ESI agreement that is not a cost shifting agreement and properly understood the law in this area, including under race tires and its progeny,

[00:25:33] Speaker 02:
recognizes that that's not the same thing as an agreement by the parties to allocate costs.

[00:25:39] Speaker 04:
So what determines... It's an agreement as to how the parties have agreed the guidelines for electronic discovery.

[00:25:48] Speaker 04:
Yes.

[00:25:49] Speaker 04:
So those are, then you agree that these guidelines, anything that's done under these guidelines is subject to the ESI agreement.

[00:25:59] Speaker 02:
Yes, but that's not the same thing as making it taxable because just because it's in the ESI agreement, this or any other ESI agreement, does not make all those activities making copies and race tires and country vintner and all the cases under them.

[00:26:15] Speaker 02:
random third and fourth circuit cases we're citing, these cases really represent the tide of decisions in the federal courts.

[00:26:23] Speaker 03:
Mr. Anthony, you got hit with a bill for costs for almost, what, $600,000?

[00:26:28] Speaker 03:
Correct, nearly that.

[00:26:30] Speaker 03:
Just curious on my part, do you have any idea how that stacks up with cost assessments in other kinds of cases like this?

[00:26:41] Speaker 03:
Is this extraordinary or is this pretty typical?

[00:26:44] Speaker 03:
It's high.

[00:26:45] Speaker 02:
And it stacks up.

[00:26:47] Speaker 02:
There are some cases that relied on our briefs.

[00:26:51] Speaker 02:
The Summit Technologies case in the Federal Circuit in 2006 refers to the idea that the fact that a case is particularly complex does not give the prevailing party unchecked right to collect nearly $400,000 in costs.

[00:27:04] Speaker 02:
That was several years ago, I acknowledge.

[00:27:07] Speaker 02:
But to answer the court's question, there are several decisions

[00:27:12] Speaker 03:
In your personal experience in courtroom, how does this look?

[00:27:19] Speaker 03:
Is it pretty typical?

[00:27:22] Speaker 02:
It's not a typical award of costs.

[00:27:25] Speaker 02:
And I'm not evading your question, Judge Plager.

[00:27:27] Speaker 02:
There's a difference between how much it costs to try a case and what are taxable costs under 19.20 paren for.

[00:27:33] Speaker 02:
Huge difference.

[00:27:34] Speaker 02:
And in fact, the Supreme Court's decision in Taniguchi makes clear that what is considered taxable costs under section 19.20 is a teeny, I think the Supreme Court wrote, a fraction of the non-taxable expenses borne by litigants.

[00:27:51] Speaker 02:
So there's an acknowledged, very limited scope of Section 1920.

[00:27:57] Speaker 02:
Section 1920 isn't, all right, what goes on the bill to a client that shows disbursements.

[00:28:04] Speaker 02:
uh... there are plenty of cost lawyers incurred that are important useful helpful in presenting evidence to court and helpful to the litigants uh... that are not taxable and and race tires illustrates that uh... the plantronics case makes that very clear uh... and so there's a uh... that because the definition isn't just anything necessary for use in the case

[00:28:32] Speaker 02:
the cost of making copies necessary for use in the case and making copies is itself a narrowly defined term as the case itself in our brief established.

[00:28:45] Speaker 01:
I'm the assumption that there will be some change in your relative positions.

[00:28:49] Speaker 01:
We need to be advised of all of that.

[00:28:53] Speaker 01:
How much time?

[00:28:53] Speaker 01:
Is two weeks enough?

[00:28:55] Speaker 01:
Too much?

[00:28:57] Speaker 01:
If I could just have the court's people.

[00:28:58] Speaker 01:
If you'll both let us know where things stand in a couple of weeks, we'll wait for your communication.

[00:29:06] Speaker 03:
Confer with your client, and I guess let the court know is what

[00:29:11] Speaker 03:
Judge Newman is asking.

[00:29:13] Speaker 01:
At least whatever changes you can agree upon.

[00:29:18] Speaker 01:
Okay, thank you both.

[00:29:21] Speaker 01:
The case is taken under submission.