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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TENNESSEE
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`No. 3:19-cv-201
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`Procon Analytics, LLC,
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`Plaintiff,
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`v.
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`Spireon, Inc.,
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`Defendant.
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`FINDINGS OF THE CLERK
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`Plaintiff Procon Analytics, LLC, filed a Bill of Costs against Defendant Spireon, Inc., on
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`April 27, 2021, in the amount of $27,743.15. [Doc. 73]. Defendant Spireon, Inc., filed a Notice
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`of Appeal on May 4, 2021 [Doc 76] as well as an Objection to the Bill of Costs on May 18, 2021
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`[Doc. 81]. Pursuant to E.D. Tenn. L.R. 54.1, Guidelines II(F)(2)(ii), the Clerk deferred the
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`taxation of costs until resolution of the appeal and required the parties to file a report on the
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`status of the costs within fourteen (14) days of the appellate mandate becoming final. [Doc. 83].
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`The appellate mandate issued on March 1, 2022 [Doc. 86] and the parties filed a Joint Status
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`Update on March 11, 2022, stating that no update to the previously filed Bill of Costs and
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`Objections was necessary. [Doc. 88]. Accordingly, the matter is ripe for determination. See
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`E.D. Tenn. L.R. 54.1.
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`Standard of Review
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`Pursuant to Federal Rule of Civil Procedure 54(d)(1), “[u]nless a federal statute, these
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`rules, or a court order provides otherwise, costs—other than attorney’s fees—should be allowed
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`to the prevailing party.” Title 28 United States Code section 1920 defines the term “costs” and
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`1
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`“enumerates [the] expenses that a federal court may tax as costs under the discretionary authority
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`found in Rule 54(d).” Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42 (1987);
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`see also 28 U.S.C. § 1920 (2018). That is, the Clerk may only tax costs as permitted by Title 28
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`United States Code sections 1821 and 1920, or as otherwise provided by law. See 28 U.S.C. §§
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`1821 and 1920.
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`Although the Court has discretion to deny costs, there is a presumption in favor of awarding
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`costs to the prevailing party. Fed. R. Civ. P. 54(d); see Freeman v. Blue Ridge Paper Products,
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`Inc., 624 Fed. Appx. 934, 938 (6th Cir. 2015) (stating Rule 54(d) “creates a presumption in favor
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`of awarding costs, but allows denial of costs at the discretion of the trial court”). Bills of costs
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`filed in this Court must be prepared in accordance with the Court’s Guidelines on Preparing Bills
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`of Costs. See E.D. Tenn. L.R. 54.1. The Clerk will not tax costs that do not comply with the
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`Guidelines or that are not supported with appropriate documentation. E.D. Tenn. L.R. 54.1,
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`Guidelines I(A).
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`Fees of the Clerk
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`Plaintiff requests $400.00 in filing fees. [Doc.73]. Defendant does not dispute this cost
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`[Doc. 81, p.2] and this fee is specifically provided for by the Guidelines. See E.D. Tenn. L.R.
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`54.1, Guidelines III(B)(1). Accordingly, the $400.00 requested as fees of the clerk shall be
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`ALLOWED.
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`Deposition Transcript Fees
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`Plaintiff requests a total of $27,343.15 in deposition transcript fees. [Doc. 73]. In support
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`of these costs, Plaintiff submits a statement that the costs are necessary and supporting
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`documentation. [Doc. 73-1, p. 2]. Defendant agrees with the taxation of some of the costs but
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`maintains that other costs are inappropriate under the Guidelines. [Doc. 81].
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`2
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`“Costs of printed or electronically recorded transcripts are taxable if (1) the transcripts were
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`necessarily obtained for use in the case and (2) the deposition was reasonably necessary at the time
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`of its taking.” E.D. Tenn. L.R. 54.1, Guidelines III(D)(1). However, the Court limits the amount
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`recoverable as costs for deposition transcripts and has adopted the Judicial Conference transcript
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`rates as the maximum taxable transcript fees notwithstanding what fee may have been charged to
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`the party by the court reporter. Id. at Guidelines III(D)(2). The current rates are $3.65 per page
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`for an original transcript and $.90 per page for a copy.1 Costs of deposition transcripts that do not
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`set forth the number of pages or rate per page will not be taxed. Id. at Guidelines III(D)(2)(i). The
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`Guidelines further provide that “[e]xtra fees charged by reporters for mileage, per diem,
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`expeditious handling, condensed transcripts, ASCII disks, postage, deposition exhibits, etc., shall
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`not be taxed, unless advanced authorization was sought and received from the Court.” E.D. Tenn.
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`L.R. 54.1, Guidelines III(D)(4).
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`Accordingly, the undersigned shall review each request and the objections thereto and
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`apply the provisions of the Guidelines to the deposition costs as follows:
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`1.
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`Video Depositions. Plaintiff requests $1,305.00 for the video deposition of Dr.
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`Michael Nranian [Doc. 73-3, p. 2], $1,015.00 for the video deposition of Jason Penkethman
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`[Docs. 73-3, p. 5], $870.00 for the video deposition of Paul Peterson [Doc. 73-3, p. 8], $580.00
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`for the video deposition of Michael Maledon [Doc. 73-3, p. 11], $450.00 for the video deposition
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`of Rita Parvaneh [Doc. 73-3, p. 13], $600.00 for the video deposition of Wallace Tennelle [Doc.
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`73-3, p. 15], and $1,200.00 for the video deposition of Sunil Marolia [Doc. 73-3, p. 17].
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`Defendant objects to taxation of these costs and argues that the Guidelines permit costs for video
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`depositions only if the deposition was used at trial. [Doc. 81, p. 5]. Additionally, Defendant
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`1 https://www.tned.uscourts.gov/court-reporter-rates (May 10, 2019).
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`argues that Procon did not meet its burden of explaining why the video depositions were
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`“necessarily obtained for use in the case” at the time taken when the Court resolved the case on a
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`Motion for Judgement on the Pleadings, “which by its very nature does not rely upon any
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`evidence, much less videotaped depositions.” [Doc. 81, p. 5].
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`While the Guidelines note that the taxation of costs for electronic media depositions used
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`at trial are “commonly taxed,” the Guidelines do not limit the taxation of costs of video
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`recordings only to those video recordings used at trial. See E.D. Tenn. L.R. 54.1, Guidelines
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`III(D)(1)(vii) (including video recordings “used at trial” in a non-exclusive list of commonly
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`taxable fees). With that stated, the prevailing party has the burden to demonstrate that “(1) the
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`transcripts were necessarily obtained for use in the case and (2) the deposition was reasonably
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`necessary at the time of its taking.” See E.D. Tenn. L.R. 54.1, Guidelines III(D)(1). Here, the
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`video recordings were not used in the case, and Plaintiff provides no justification as to why any
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`video recordings were necessary in addition to printed transcripts. [Doc. 73-3, pp. 3, 6, 12, 14,
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`16, and 18]. In the case of Mr. Nranian’s deposition, Plaintiff asserts that the deposition was
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`obtained for “claim construction briefing purposes,” which, presumably, does not require more
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`than a printed transcript. [Doc. 73-1, p. 2]. As such, Plaintiff has failed to meet its burden under
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`the Guidelines. Accordingly, the video deposition costs in the amount of $6,020.00 are
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`DISALLOWED.
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`2.
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`Invoice No. 635980 [Doc. 73-3, p. 3]. The following charges will be
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`ALLOWED: $1,178.95 (323 pages x $3.65) for the original deposition transcript of Michael
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`Nranian taken August 18, 2020. The remaining $290.70 requested as costs will be
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`DISALLOWED because the rate charged is higher than the maximum allowable for originals
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`and Plaintiff has not shown that it is entitled to costs for both the original and copy. The
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`4
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`$280.00 requested as costs for the full day attendance fee is ALLOWED as within the maximum
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`amount permitted by the Guidelines. Id. III(D)(3)(i). Unless advanced authorization is received
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`from the Court, extra fees are not taxable. Id. at III(D)(4). Accordingly, the $800.00 requested
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`as a web conferencing fee will be DISALLOWED.
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`The total amount ALLOWED for this invoice is $1,458.95.
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`3.
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`Invoice No. SF4508567 [Doc. 73-3, p. 4]. The following charges will be
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`ALLOWED: $143.10 (159 pages x $0.90) for a copy of the deposition transcript of Dr. Ralph
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`Wilhelm. Unless advanced authorization is received from the Court, extra fees—including
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`expedited handling—are not taxable. Id. at III(D)(4). Accordingly, the $310.05 requested for
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`realtime services will be DISALLOWED.
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`The total amount ALLOWED for this invoice is $143.10.
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`4.
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`Invoice No. 655567 [Doc. 73-3, pp. 6-7]. The following charges will be
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`ALLOWED: $602.25 (165 pages x $3.65) for the original deposition transcript of Jason
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`Penkethman and $237.25 (65 pages x $3.65) for the original 30(b)(6) deposition transcript of
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`Jason Penkethman. The remaining $148.50 and $58.50 requested for the depositions will be
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`DISALLOWED because the rate charged is higher than the maximum allowable for originals
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`and Plaintiff has not shown that it is entitled to costs for both the original and copy. The
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`$157.50 charged as an attendance fee for the Jason Penkethman deposition and the $52.50
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`charged as an attendance fee for the 30(b)(6) Jason Penkethman deposition will be ALLOWED
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`as within the maximum amount permitted by the Guidelines. Id. III(D)(3)(i). Unless advanced
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`authorization is received from the Court, extra fees—including expedited handling—are not
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`taxable. Id. at III(D)(4). Accordingly, the realtime services and web conference fees requested
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`will be DISALLOWED.
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`5
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`The total amount ALLOWED for this invoice is $1,049.50.
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`5.
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`Invoice No. 655571 [Doc. 73-3, p. 9]. The following costs will be ALLOWED:
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`$788.40 (216 pages x $3.65) for the original deposition transcript of Paul Peterson. The
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`remaining $194.40 requested will be DISALLOWED because the rate charged is higher than the
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`maximum allowable for originals and Plaintiff has not shown that it is entitled to costs for both
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`the original and copy. The $157.50 charged as an attendance fee for 4.5 hours will be
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`ALLOWED as within the maximum amount permitted by the Guidelines. Id. III(D)(3)(i).
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`Unless advanced authorization is received from the Court, extra fees—including expedited
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`handling—are not taxable. Id. at III(D)(4). Accordingly, the realtime services and web
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`conference fees requested will be DISALLOWED.
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`The total amount ALLOWED for this invoice is $945.90.
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`6.
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`Invoice No. 656560 [Doc. 73-3, p. 10]. The following costs will be ALLOWED:
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`$547.50 (150 pages x $3.65) for the original deposition transcript of Benjamin Kiser. The
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`remaining $135.00 requested will be DISALLOWED because the rate charged is higher than the
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`maximum allowable for originals and Plaintiff has not shown that it is entitled to costs for both
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`the original and copy. The $120.00 charged as an attendance fee for 3 hours will be
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`ALLOWED as within the maximum amount permitted by the Guidelines. Id. III(D)(3)(i).
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`Unless advanced authorization is received from the Court, extra fees—including expedited
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`handling—are not taxable. Id. at III(D)(4). Accordingly, the realtime services and web
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`conference fees requested will be DISALLOWED.
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`The total amount ALLOWED for this invoice is $667.50.
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`7.
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`Invoice No. 655576 [Doc. 73-3, p. 12]. The following costs will be ALLOWED:
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`$624.15 (171 pages x $3.65) for the original deposition transcript of Michael Maledon. The
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`6
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`remaining $143.90 requested will be DISALLOWED because the rate charged is higher than the
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`maximum allowable for originals and Plaintiff has not shown that it is entitled to costs for both
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`the original and copy. The $105.00 charged as an attendance fee for 3 hours will be
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`ALLOWED as within the maximum amount permitted by the Guidelines. Id. III(D)(3)(i).
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`Unless advanced authorization is received from the Court, extra fees—including expedited
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`handling—are not taxable. Id. at III(D)(4). Accordingly, the realtime services and web
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`conference fees requested will be DISALLOWED.
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`The total amount ALLOWED for this invoice is $729.14.
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`8.
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`Invoice No. 656768 [Doc. 73-3, p. 14]. The following costs will be ALLOWED:
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`$266.45 (73 pages x $3.65) for the original deposition transcript of Rita Parvaneh. The
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`remaining $65.70 requested will be DISALLOWED because the rate charged is higher than the
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`maximum allowable for originals and Plaintiff has not shown that it is entitled to costs for both
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`the original and copy. The $100.00 charged as an attendance fee for 2 hours will be
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`ALLOWED as within the maximum amount permitted by the Guidelines. Id. III(D)(3)(i).
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`Unless advanced authorization is received from the Court, extra fees—including expedited
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`handling—are not taxable. Id. at III(D)(4). Accordingly, the realtime services and web
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`conference fees requested will be DISALLOWED.
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`The total amount ALLOWED for this invoice is $366.45.
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`9.
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`Invoice No. 656771 [Doc. 73-3, p. 16]. The following costs will be ALLOWED:
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`$562.10 (154 pages x $3.65) for the original deposition transcript of Wallace Tennelle. The
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`remaining $138.60 requested will be DISALLOWED because the rate charged is higher than the
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`maximum allowable for originals and Plaintiff has not shown that it is entitled to costs for both
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`the original and copy. The $120.00 charged as an attendance fee for 3 hours will be
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`7
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`ALLOWED as within the maximum amount permitted by the Guidelines. Id. III(D)(3)(i).
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`Unless advanced authorization is received from the Court, extra fees—including expedited
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`handling—are not taxable. Id. at III(D)(4). Accordingly, the realtime services and web
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`conference fees requested will be DISALLOWED.
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`The total amount ALLOWED for this invoice is $682.10.
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`10.
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`Invoice No. 656774 [Doc. 73-3, p. 18]. The following costs will be ALLOWED:
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`$941.70 (258 pages x $3.65) for the original 30(b)(6) deposition transcript of Sunil Marolia. The
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`remaining $232.20 requested will be DISALLOWED because the rate charged is higher than the
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`maximum allowable for originals and Plaintiff has not shown that it is entitled to costs for both
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`the original and copy. The $280.00 charged as an attendance fee for 7 hours will be
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`ALLOWED as within the maximum amount permitted by the Guidelines. Id. III(D)(3)(i).
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`Unless advanced authorization is received from the Court, extra fees—including expedited
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`handling—are not taxable. Id. at III(D)(4). Accordingly, the realtime services and web
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`conference fees requested will be DISALLOWED.
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`The total amount ALLOWED for this invoice is $1,221.70.
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`11.
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`Invoice No. 4822115 [Doc. 73-3, p. 19]. The following costs will be
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`ALLOWED: $185.40 (206 pages x $0.90) for a copy of the 30(b)(6) deposition transcript of
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`William Cheney. The remaining $712.70 requested will be DISALLOWED because the rate
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`charged is higher than the maximum allowable for copies and Plaintiff is not entitled to costs for
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`the original when Defendants paid for the original transcript. [Doc. 81, p. 3].
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`The total amount ALLOWED for this invoice is $185.40.
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`12.
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`Invoice No. 4826916 [Doc. 73-3, p. 20]. The following costs will be
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`ALLOWED: $104.40 (116 pages x $0.90) for a copy of the deposition transcript of William
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`Cheney. The remaining $423.40 requested will be DISALLOWED because the rate charged is
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`higher than the maximum allowable for copies and Plaintiff is not entitled to costs for the
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`original when Defendants paid for the original transcript. [Doc. 81, p. 3]. Unless advanced
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`authorization is received from the Court, extra fees—including expedited handling—are not
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`taxable. Id. at III(D)(4). Accordingly, the realtime services and web conference fees requested
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`will be DISALLOWED.
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`The total amount ALLOWED for this invoice is $104.40.
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`13.
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`Invoice No. 4829776 [Doc. 73-3, p. 21]. The following costs will be
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`ALLOWED: $105.30 (117 pages x $0.90) for a copy of the deposition transcript of David
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`Meyer and $43.20 (48 pages x $0.90) for a copy of the 30(b)(6) deposition transcript of David
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`Meyer. The remaining $427.05 and $175.20 requested will be DISALLOWED because the rate
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`charged is higher than the maximum allowable for copies and Plaintiff is not entitled to costs for
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`the original when Defendants paid for the original transcript. [Doc. 81, p. 3]. Unless advanced
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`authorization is received from the Court, extra fees—including expedited handling—are not
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`taxable. Id. at III(D)(4). Accordingly, the realtime services and web conference fees requested
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`will be DISALLOWED.
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`The total amount ALLOWED for this invoice is $105.30.
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`14.
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`Invoice No. 4934232 [Doc. 73-3, p. 22]. The following costs will be
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`ALLOWED: $76.50 (85 pages x $0.90) for a copy of the deposition transcript of Michelle
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`Jackson. The remaining $310.25 requested will be DISALLOWED because the rate charged is
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`higher than the maximum allowable for copies and Plaintiff is not entitled to costs for the
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`original when Defendants paid for the original transcript. [Doc. 81, p. 3]. Unless advanced
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`authorization is received from the Court, extra fees—including expedited handling—are not
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`taxable. Id. at III(D)(4). Accordingly, the realtime services and web conference fees requested
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`will be DISALLOWED.
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`The total amount ALLOWED for this invoice is $76.50.
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`15.
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`Invoice No. 4956198 [Doc. 73-3, p. 23]. The following costs will be
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`ALLOWED: $119.70 (133 pages x $0.90) for a copy of the deposition transcript of Michelle
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`Jackson. The remaining $485.45 requested will be DISALLOWED because the rate charged is
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`higher than the maximum allowable for copies and Plaintiff is not entitled to costs for the
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`original when Defendants paid for the original transcript. [Doc. 81, p. 3]. Unless advanced
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`authorization is received from the Court, extra fees—including expedited handling—are not
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`taxable. Id. at III(D)(4). Accordingly, the realtime services and web conference fees requested
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`will be DISALLOWED.
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`The total amount ALLOWED for this invoice is $119.70.
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`Total Allowed Costs
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`The following costs are hereby taxed against Plaintiff in favor of Defendant, pursuant to
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`Federal Rule Civil Procedure 54(d) and Eastern District of Tennessee Local Rule 54.1:
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`Fees of the Clerk:
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`Fees for Transcripts:
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`TOTAL ALLOWED COSTS:
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`$400.00
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`$7,855.64
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`$8,255.64
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` LEANNA R. WILSON, CLERK
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`By: s/ Christopher Field
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` Chief Deputy Clerk
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