IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

APPLIANCE COMPUTING III, INC.

d/b/a SUREFIELD,

Plaintiff,

v.

REDFIN CORPORATION,

Defendant.

§

§

§

§

§

§

§

§

§

§

Case No. 6:20-cv-00376-ADA

REDFIN’S MEMORANDUM IN SUPPORT OF ITS PROPOSED BILL OF COSTS

As the prevailing party in this litigation, Defendant Redfin Corporation requests an award 

of costs in the amount of $145,907.26 as reflected in its proposed Bill of Costs filed concurrently 

herewith. 

On August 15, 2022, the Court entered its Order of Judgment after the jury reached and 

returned its unanimous verdict in favor of Defendant on May 17, 2022. ECF 234, 245. The 

Order of Judgment expressly states that Redfin is the prevailing party and shall recover its costs 

from Plaintiff. ECF 245 ¶ 3.

The following categories of costs are permitted under 28 U.S.C. § 1920: 

(1) Fees of the clerk and marshal; 

(2) Fees for printed or electronically recorded transcripts necessarily obtained for use 

in the case; 

(3) Fees and disbursements for printing and witnesses; 

(4) Fees for exemplification and the costs of making copies of any materials where

the copies are necessarily obtained for use in the case; 

(5) Docket fees under section 1923 of this title; 

Case 6:20-cv-00376-ADA Document 247-1 Filed 08/29/22 Page 1 of 11
1

(6) Compensation of court appointed experts, compensation of interpreters, and 

salaries, fees, expenses, and costs of special interpretation services under section 

1828 of this title. 

Redfin’s Section 1920 costs are enumerated in its proposed Bill of Costs and described in 

further detail in this supporting memorandum and its attached exhibits. 

I. Section 1920(1): “Fees of the clerk and marshal”

Although Section 1920(1) does not expressly allow for recovery of private process server 

fees, a prevailing party who used a private process server may recover as costs the amount that 

would have been charged by the U.S. Marshal’s Service for service of process. See, e.g., Ibarra 

v. BP Expl. & Prod. Inc., No. CV H-19-2898, 2020 WL 6585691, at *2 (S.D. Tex. Nov. 10, 

2020) (citing cases). In this case, Redfin attempted and effected service of five subpoenas, 

incurring total costs of $2,704.11. See Exhibit A. The U.S. Marshall in this case would have 

charged $65.00 per hour for service of process. See 28 C.F.R. § 0.114. Based on this rate, Redfin 

has calculated a total of $585.00 for its service of process fees. See id.

II. Section 1920(2): “Fees for printed or electronically recorded transcripts necessarily 

obtained for use in this case” 

Redfin seeks to recover $74,029.16 in costs for printed or electronically recorded trial 

and deposition transcripts. Section 1920(2) permits Redfin, as the prevailing party, to recover 

these costs. See 28 U.S.C. § 1920(2).

A. Transcripts of Court Proceedings 

Redfin seeks taxation of costs in the amount of $16,542.36 for daily trial proceedings 

transcripts which were used during trial. The invoice for these costs is attached as Exhibit B.

B. Transcripts of Depositions

Redfin also incurred significant costs in connection with the depositions of fact and 

expert witnesses. Costs related to depositions are permitted under Section 1920(2) if the 

Case 6:20-cv-00376-ADA Document 247-1 Filed 08/29/22 Page 2 of 11
2

depositions “were necessarily obtained for use in the case.” 28 U.S.C. § 1920(2). The Fifth 

Circuit has “consistently held that a deposition need not be introduced into evidence at trial in 

order to be ‘necessarily obtained for use in the case.’” Fogleman v. ARAMCO, 920 F.2d 278, 285 

(5th Cir. 1991). “If, at the time it was taken, a deposition could reasonably be expected to be

used for trial preparation, rather than merely for discovery, it may be included in the costs of the

prevailing party.” Id.; see also Stearns Airport Equip. Co., Inc. v. FMC Corp., 170 F.3d 518, 536 

(5th Cir. 1999). Section 1920(2) also permits taxing costs for video recordings of depositions. 

See, e.g., SynQor, Inc. v. Artesyn Techs., Inc., No. 2:07-CV-497-TJW-CE, 2011 WL 4591893, at 

*2 (E.D. Tex. Sept. 30, 2011) (explaining 2008 amendment to Section 1920 permits recovery of 

both transcripts and video recordings necessarily obtained for use in the case).

Redfin seeks $57,486.80 in costs for deposition transcripts and videos associated with the 

below-identified witnesses. These were necessarily obtained for use in this case as explained for 

each listed witness below. The costs for each listed witness are set forth in detail as Exhibit C. 

The respective invoices for each with itemization are also included with Exhibit C.

Deponent Why Transcripts Were Necessarily Obtained for Use in This Case

Bell, Matthew Developer of accused technology; Matterport co-founder and Matterport 

30(b)(6) witness; deposed by Surefield

Benoit, Paul C. Surefield’s damages expert

Bokhari, Sheharyar Redfin analytics employee who had studied value of accused technology; 

deposed by Surefield

Dwivedi, Shekhar Developer of Surefield’s commercial embodiment of the asserted 

technology

Eraker, David Inventor of the asserted technology; Surefield’s 30(b)(6) witness

Furukawa, Yasutaka Developer of Google prior art; deposed by Surefield

Gausebeck, Dave Developer of accused technology; Matterport co-founder and Matterport 

30(b)(6) witness; deposed by Surefield

Case 6:20-cv-00376-ADA Document 247-1 Filed 08/29/22 Page 3 of 11
3

Hu, Peter Redfin employee who developed accused technology; Redfin 30(b)(6) 

witness; deposed by Surefield

Johnson, Brian Redfin analytics employee who had studied extent of use of accused 

technology; deposed by Surefield

Kalaiah, Aravind Inventor of asserted technology

Kelman, Glenn Redfin CEO; deposed by Surefield

Kota, Justin Redfin technology developer deposed by Surefield

Malackowski, James Redfin’s damages expert

McGarty, Robert Inventor of asserted technology

Melendez, Jose Luis Surefield’s technical expert

Michel, Daniel Matterport salesperson who had interactions with Surefield

Navratil, Paul Redfin’s technical expert

Stocking, Chris Redfin financial executive and Redfin 30(b)(6) witness; deposed by 

Surefield

Taylor, Lisa Redfin marketing executive and Redfin 30(b)(6) witness; deposed by 

Surefield

Wiener, Adam Redfin executive and Redfin 30(b)(6) witness; deposed by Surefield

Xiao, Allen Redfin technology developer and Redfin 30(b)(6) witness; deposed by 

Surefield

As also reflected in Exhibit C, Redfin seeks only a subset of its total deposition-related 

costs,1 and has omitted incidental costs except the expedited delivery charges associated with

three deposition transcripts. These depositions consist of the parties’ technical expert witnesses, 

Paul Navratil and Jose Luis Melendez, whose depositions took place October 18-20, 2021, less 

1 Redfin has limited its deposition costs to itemized charges recently found by this Court to be 

“necessary.” See Profectus Tech. LLC v. Google LLC, 6:20-cv-00101-ADA, 2022 WL 3362282, 

at *3-4 (W.D. Tex. Aug. 15, 2022). Additionally, Redfin has already omitted costs incurred for 

videos of witnesses who testified at trial (i.e., Benoit, Eraker, Furukawa, Melendez). See MV3 

Partners LLC v. Roku, Inc., No. 6:18-CV-00308-ADA, 2022 WL 1913619, at *4 (W.D. Tex. 

June 3, 2022) (allowing recovery for video depositions of witnesses who did not testify at trial).

Case 6:20-cv-00376-ADA Document 247-1 Filed 08/29/22 Page 4 of 11
4

than a week before the October 25, 2021 Daubert and dispositive motion deadlines. Expedited 

transcripts were necessary given the short turnaround time by which Redfin needed them to meet

such deadlines and are thus recoverable. See, e.g., Roku, 2022 WL 1913619, at *4 (allowing 

expedited fees where necessary to meet Daubert and dispositive motion deadlines) (citation 

omitted); Jacked Up, LLC v. Sara Lee Corp., No. 3:11-cv-3296-L, 2015 WL 10607574, at *3 

(N.D. Tex. Sept. 2, 2015), report and recommendation adopted, No. 3:11-CV-3296-L, 2016 WL 

1322135 (N.D. Tex. Apr. 5, 2016) (awarding expedited costs where deposition taken “shortly 

before the summary judgment deadline”).

II. Section 1920(3): “Fees and disbursements for printing and witnesses”

The statutory fees and allowances for witness attendance are set forth in 28 U.S.C. §

1821. In particular, attendance fees for witnesses at deposition or trial are $40 per day of 

attendance, including time necessarily occupied going to and returning from the place of 

attendance. 28 U.S.C. § 1821(a)(1),(b). The total fees for travel are calculated based on actual 

expenses of travel pursuant to 28 U.S.C. § 1821(c). Section 1821 sets no limit on the distance 

from which a witness may be brought, allowing reimbursement for any “distance necessarily 

traveled to and from such witness’s residence by the shortest practical route in going to and 

returning from the place of attendance.” The total fees requested for lodging and meals and 

incidentals (i.e., subsistence allowances) are calculated based on per diem rates provided by the 

Administrator of General Services (“GSA”) for the relevant time period and location, as required 

by 28 U.S.C. § 1821(d). 

Case 6:20-cv-00376-ADA Document 247-1 Filed 08/29/22 Page 5 of 11
5

Redfin requests taxation of $1,120.00 in witness attendance fees at deposition and trial 

pursuant to 28 U.S.C. § 1821(b), as well as $8,271.16 in travel2 and subsistence costs pursuant to 

28 U.S.C. § 1821(c),(d), for a total of $9,391.16. A summary with details of these expenses and 

supporting documentation for the same, as well as the applicable GSA per diem and mileage 

rates, are submitted with Exhibit D.

III. Section 1920(4): “Fees for exemplification and the costs of making any materials 

where the copies are necessarily obtained for use in the case”

A. Fees for Exemplification

As reflected in Exhibit E, Redfin also seeks taxation of $35,001.94 in fees for 

exemplification, including of Redfin’s accused technology and the prior art at trial.

3 Redfin 

reasonably calculated these fees by apportioning the billed time of IMS Consulting & Expert 

Services, LLC’s Tracy Lodge in April 2022 and May 2022, during which the entirety of Mr. 

Lodge’s billed time was spent to create the demonstratives used by Redfin’s technical expert

(Paul Navratil) and damages expert (James Malackowski). Approximately 85 of the 154 slides

(55%) created for Mr. Navratil were exemplifications used at trial on how Redfin’s accused 

technology and the prior art worked. Approximately 3 of the 31 slides created for Mr. 

Malackowski were exemplifications of relevant Matterport and Redfin agreements and used at 

trial. In total, approximately 88 of 185 slides (48%) can be attributed to fees for exemplification, 

which is the percentage apportionment applied to Mr. Lodge’s April and May 2022 time to 

calculate Redfin’s requested amount of $35,001.94.

2 For amounts incurred in CAD, Redfin has applied the May 2022 average CAD USD exchange 

rate (0.7786) to calculate estimated totals in USD. 3 This amount represents less than 22% of the total fees of $159,427.19 which Redfin incurred 

for its trial graphics. See Exhibit E.

Case 6:20-cv-00376-ADA Document 247-1 Filed 08/29/22 Page 6 of 11
6

Redfin recognizes that this Court recently construed “exemplification” as used in Section 

1920(4) as “narrow in scope” whereby it did not authorize “taxing costs for trial graphics, trial 

technicians, trial equipment, or equipment for remote trial testimony.” Profectus Tech. LLC v. 

Google LLC, 6:20-cv-00101-ADA, 2022 WL 3362282, at *5 (W.D. Tex. Aug. 15, 2022). 

However, the Court also noted that Section 1920(4) would “allow for and capture the costs 

beyond mere documents, such as physical product samples,” and permitted recovery of costs for 

physical trial demonstratives as within the common definition of “exemplification.” Id. at *5; see 

also id. at *7 (noting lay definitions of “exemplification” at Merriam-webster.com as “an 

example and listing synonyms such as ‘prototype,’ ‘representative,’ and ‘sample’” and at 

Dictionary.com “as ‘something that exemplifies; an illustration or example’”).

Here, unlike in Google, Redfin does not seek to recover all costs generally related to its 

trial graphics, trial exhibits, trial consultants, trial technicians and trial equipment. Rather, Redfin 

has narrowly tailored its request for fees to limit them to those reasonably expended specifically 

for trial graphics used to exemplify Redfin’s accused technology, the prior art, and relevant 

agreements. Exemplifying trial graphics were particularly necessitated in this highly technical 

patent infringement case, including because the technology at issue otherwise could not be

exemplified to the jury through physical prototypes or devices. See, e.g., Two-Way Media, LLC 

v. AT&T Servs., Inc., No. SA–09–CA–00476–OLG, 2013 WL 12090356, at *6 (W.D. Tex. Nov. 

22, 2013) (noting in highly technical cases trial technology is “not only reasonable but 

necessary”) (citing Versata Software, Inc. v. SAP Am., Inc., No. 2:07–CV–153 CE, 2011 WL 

4436283, at *2 (E.D. Tex. Sept. 23, 2011).

Case 6:20-cv-00376-ADA Document 247-1 Filed 08/29/22 Page 7 of 11
7

B. Costs to Make Copies of Source Code Available for Secure and Remote 

Inspection by Plaintiff

Redfin finally seeks taxation of $26,900.00 for costs incurred to make source code 

securely and remotely available for review for Plaintiff. See Exhibit F.

4 In this case, Plaintiff

required remote access and review of source code during the course of the litigation and also 

agreed to protocols for the same. Such costs are recoverable by Redfin pursuant to 28 U.S.C. §

1920(4). See, e.g., CBT Flint Partners, LLC v. Return Path, Inc., 737 F.3d 1320, 1332–33 (Fed. 

Cir. 2013) (“Covered costs include the costs incurred in providing a secured computer for the 

time the requester is entitled to access to it, installing on the secured computer whatever review 

software the requester requires, and copying the source code files to the secured computer.”); 

Georgetown Rail Equip. Co. v. Holland L.P., No. 6:13-CV-366, 2016 WL 3531301, at *2 (E.D. 

Tex. Mar. 31, 2016); Virtual Chart Sols. I, Inc. v. Meredith, No. 4:17CV546, 2020 WL 1902530, 

at *23 (E.D. Tex. Jan. 13, 2020), report and recommendation adopted, No. 4:17CV546, 2020 

WL 896674 (E.D. Tex. Feb. 25, 2020).

IV. CONCLUSION 

For the reasons stated above, Redfin, as the prevailing party in this litigation, requests an 

award of costs in the amount of $145,907.26, as reflected in its proposed Bill of Costs submitted 

concurrently herewith.

4 Redfin is not seeking its significant eDiscovery costs incurred by the extensive discovery done

in this case, and also has apportioned its total costs related to secure and remote source code 

review, totaling $39,000.00, to account for only those fees incurred as a result of Plaintiff’s 

access to and use of source code materials which Redfin had made available. See Exhibit F. 

Case 6:20-cv-00376-ADA Document 247-1 Filed 08/29/22 Page 8 of 11
1

Dated: August 29, 2022 /s/ Ryan J. Marton

Ryan J. Marton (Admitted Pro Hac Vice)

ryan@martonribera.com

Hector J. Ribera (Admitted Pro Hac Vice)

hector@martonribera.com

Carolyn Chang (Admitted Pro Hac Vice)

carolyn@martonribera.com

Phillip Haack (Admitted Pro Hac Vice)

phaack@martonribera.com

MARTON RIBERA SCHUMANN

& CHANG LLP

548 Market St., Suite 36117

San Francisco, CA 94104

Telephone: (415) 360-2515

Darryl Adams

Texas State Bar No. 00796101

dadams@sgbfirm.com

SLAYDEN GRUBERT BEARD PLLC 

401 Congress Ave., Ste. 1650 

Austin, Texas 78701 

Telephone: (512) 402-3550 

Facsimile: (512) 402-6865 

Benjamin J. Byer (Admitted Pro Hac Vice) 

benbyer@dwt.com 

DAVIS WRIGHT TREMAINE LLP 

920 Fifth Avenue, Suite 3300 

Seattle, Washington 98104 

Telephone: (206) 757-8105 

Facsimile: (206) 757-7105

M. Scott Stevens (NC Bar # 37828)

ALSTON & BIRD LLP 

One South at the Plaza

101 South Tryon Street, Suite 4000

Charlotte, North Carolina 28280

Tel: 704.444.1000

Fax: 704.444.1111

Deron R. Dacus (Texas Bar No. 00790553)

THE DACUS LAW FIRM, P.C.

821 ESE Loop 323, Suite 430

Tyler, TX 75701

Telephone: (903) 705-1117

Case 6:20-cv-00376-ADA Document 247-1 Filed 08/29/22 Page 9 of 11
2

Facsimile: (903) 581-2543

COUNSEL FOR DEFENDANT 

REDFIN CORP.

Case 6:20-cv-00376-ADA Document 247-1 Filed 08/29/22 Page 10 of 11
3

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing is being served on the 

counsel of record via the CM/ECF system on August 29, 2022.

By: /s/ Ryan J. Marton

Ryan J. Marton

Case 6:20-cv-00376-ADA Document 247-1 Filed 08/29/22 Page 11 of 11