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1 Defendants also initially included a request to recover

attorneys’ fees in their bill of costs. Plaintiff objected to 

defendants’ raising attorneys’ fees in the bill of costs. 

Thereafter, defendants filed a separate motion to recover their

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

CONCRETE WASHOUT SYSTEMS,

INC.,

NO. CIV. S-04-1005 WBS DAD

Plaintiff,

v.

ORDER RE: COSTS

MINEGAR ENVIRONMENTAL SYSTEMS,

INC., a California

corporation, PETER J. MINEGAR,

and DOES 1-10,

Defendants.

----oo0oo----

On July 13, 2005, the court granted summary judgment to

defendants on plaintiff’s service mark and trade name

infringement claims under 15 U.S.C. § 1125(a), and declined to

exercise jurisdiction over plaintiff’s claim for declaratory

relief under 28 U.S.C. § 2201 and plaintiff’s state-law claims. 

Defendants have submitted a bill of costs totaling $11,238.23.1 

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attorneys’ fees so as not to complicate the taxation of costs. 

Therefore, the court will consider defendants’ request for

attorneys’ fees when it decides defendants’ attorneys’ fees

motion.

2

Plaintiff objects to the amount submitted on three

grounds: (1) defendants’ bill of costs is defective because

defendants failed to submit an adequate affidavit stating that

each item claimed is correct and was necessarily incurred in the

case as required by 28 U.S.C. § 1924; (2) costs for videotaped

depositions should not be taxed; and (3) fees and disbursements

for copying and printing costs are improperly charged.

Rule 54(d)(1) of the Federal Rules of Civil Procedure

and Local Rule 54-292(f) govern the taxation of costs to losing

parties, subject to limits set under 28 U.S.C. § 1920. See 28

U.S.C. § 1920 (enumerating taxable costs); Fed. R. Civ. P.

54(d)(1) (“costs other than attorneys’ fees shall be allowed as

of course to the prevailing party unless the court otherwise

directs . . . .”); L.R. 54-292(f); Crawford Fitting Co. v. J.T.

Gibbons, 482 U.S. 437, 441 (1987)(limiting taxable costs to those

enumerated in 28 U.S.C. § 1920). There is a strong presumption

in favor of awarding costs to the prevailing party. Miles v.

State of California, 320 F.3d 986, 988 (9th Cir. 2003). The

district court has discretion to determine what constitutes a

taxable cost within the meaning of 28 U.S.C. § 1920. Amarel v.

Connell, 102 F.3d 1494, 1523 (9th Cir. 1996). The losing party

has the burden of overcoming the presumption in favor of awarding

costs to the prevailing party. Russian River Watershed

Protection Comm. v. City of Santa Rosa, 142 F.3d 1136, 1144 (9th

Cir. 1998).

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2 Before any bill of costs is taxed, the party claiming

any item of cost or disbursement shall attach thereto

an affidavit, made by himself or by his duly authorized

attorney or agent having knowledge of the facts, that

such item is correct and has been necessarily incurred

in the case and that the services for which fees have

been charged were actually and necessarily performed.

28 U.S.C. § 1924. 

3

Defendants have complied with 28 U.S.C. § 1924. The

statute requires the party seeking costs to attach an affidavit

to its costs bill before the taxation of costs. The affidavit

must state that the costs claimed are “correct” and were

“necessarily incurred in the case and that the services . . .

charged were “actually and necessarily performed.”2 Plaintiff

correctly points out that the first declaration defendants

submitted with its bill of costs did not meet this standard. 

However, defendants have submitted a supplemental affidavit from

their counsel in this action stating that 

[e]ach of [sic] item of cost identified in Defendants’

Bill of Costs and all invoices attached to [this]

declaration in support of [the] Bill of Costs, is

correct and was necessarily incurred in the case, and

the services for which fees were charged were actually

and necessarily performed. 

(Cialone Affidavit ¶ 3). This affidavit clearly meets the 

requirements of 28 U.S.C. § 1924. 

The fact that the affidavit was not submitted initially

is not fatal. A good faith amendment to a bill of costs to make

it comply with § 1924 suffices to redeem an otherwise defective

bill of costs. See Trammell Real Estate Corp. v. Trammell, 748

F.2d 1516, 1518, & n.1 (11th Cir. 1984)(district court abused its

discretion in disallowing costs to prevailing party where the

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party amended its bill of costs to comport with § 1924). 

Therefore, defendants’ bill of costs is not defective. 

Plaintiff contends that defendants should not be

allowed to recover costs for videotaped depositions because

“[c]ourts are split on whether the costs of videotaped

depositions are taxable.” (Pl.’s Objections to Defs.’ Bill of

Costs at 3). The cases plaintiff cites do indicate such a split.

See Tilton v. Capital Cities/ABC,Inc., 115 F.3d 1471, 1477 (10th

Cir. 1997)(awarding costs for videotaping depositions); Marbled

Murrelet v. Pac. Lumber Co., 163 F.R.D. 308, 329 (N.D. Cal.

1995)(same); Mota v. Univ. of Texas, Houston Health Sci. Ctr.,

261 F.3d 512, 520-530 (5th Cir. 2001)(holding that costs for

videotaping depositions are not recoverable under 28 U.S.C. §

1920); De Roburt v. Gannett Co., Inc., 558 F.Supp. 1223, 1228 (D.

Haw. 1983)(denying costs for videotaping depositions).

The Ninth Circuit has not spoken to this issue, but the

majority of district court cases in this Circuit that have

addressed the issue have held that costs for videotaping

depositions are recoverable under 28 U.S.C. § 1920. See Pixion

Inc. v. Placeware, Inc., 2005 U.S. Dist. LEXIS 11351 *6 (N.D.

Cal. May 26, 2005)(allowing recovery of costs for videotaping

depositions); Arboireau v. Adidas Salomon AG, 2002 U.S. Dist.

LEXIS 20342 *16 (D. Or. June 14, 2002)(allowing such costs where

there is sufficient showing that videotaping was necessary);

Alvarez v. IBP, Inc., 2001 U.S. Dist. LEXIS 25341 *38 (E.D. Wash.

Dec. 14, 2001)(leaving undisturbed award for costs for

videotaping depositions); Nicolaus v. West Side Transp., Inc.,

185 F.R.D. 608, 612 (D. Nev. 1999)(“. . . the costs of

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videotaping and transcribing a deposition are taxable.”); Marbled

Murrelet, 163 F.R.D. at 329(accord); but see Automotive Prods. V.

Tilton Eng’g, Inc., 1994 U.S. Dist. LEXIS 20128 *11 (C.D. Cal.

Mar. 1, 1994)(approving clerk’s refusal to tax costs for

videotaping depositions); De Roburt, 558 F.Supp. at 1228(denying

costs for videotaping depositions). 

The court is not persuaded that costs should always be

allowed for videotaping all depositions. However, the majority

trend of the district courts in this Circuit persuades this court

that such costs should be allowed where there is some showing

that the videotaping was reasonably necessary. Here, defendants

note that this case involved issues of alleged fraud and

misappropriation of trade secrets, issues where the veracity and

credibility of witnesses would be at issue. Defendants thus had

reason to videotape the depositions in case the deponents’

visible reactions or tones of voice revealed something about

their credibility. Because defendants’ decision to videotape the

depositions was reasonable, defendants may recover their

videotaping costs. 

Lastly, the court addresses plaintiff’s argument that

defendants have failed to establish that the copying and printing

costs claimed by defendants were necessarily incurred in this

case as required by 28 U.S.C. § 1920. See 28 U.S.C. § 1920(4)

(allowing taxation of costs for “Fees for exemplification and

copies of papers necessarily obtained for use in the case”). 

Frank A. Cialone, defendants’ counsel in this matter, states in

an affidavit submitted to this court why the copies and printouts

were necessarily obtained for use in the case. Mr. Cialone

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explains that plaintiff produced the bulk of its documents in

electronic form on seven CDs that contained the equivalent of

over 60,000 hard copy pages. (Cialone Affidavit ¶ 4). 

Defendants were unable to efficiently search the CDs to identity

the relevant documents without first creating a centralized,

searchable database of the information contained on the CDs. 

Therefore, defendants hired Document Technologies, Inc. (“DTI”)

to create such a database. This allowed defendants to

selectively print only those materials they believed were

relevant and necessary to defend the case. Defendants also paid

DTI to create hard copies of the relevant database files. 

Defendants’ counsel’s firm performed all other photocopying. 

(Id.). This explanation is satisfactory. Therefore, defendants

may recover their copying and printing costs. 

After reviewing the bill, the court finds all other

costs claimed to be reasonable. Accordingly, costs of $11,238.23

will be allowed.

IT IS SO ORDERED.

DATED: August 26, 2005

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