United States Court of Appeals
for the Federal Circuit
__________________________
IN RE RICOH COMPANY, LTD. PATENT
LITIGATION
__________________________
SYNOPSYS, INC.,
Plaintiff-Appellee,
v.
RICOH COMPANY, LTD.,
Defendant-Appellant.
__________________________
RICOH COMPANY, LTD.,
Plaintiff-Appellant,
v.
AEROFLEX INCORPORATED, AMI
SEMICONDUCTOR, INC.,
MATROX ELECTRONIC SYSTEMS, LTD., MATROX
GRAPHICS, INC.,
MATROX INTERNATIONAL, INC., MATROX TECH,
INC.,
AND AEROFLEX COLORADO SPRINGS, INC.,
Defendants-Appellees.
__________________________
2011-1199
__________________________
SYNOPSYS v. RICOH CO 2
Appeal from the United States District Court for the
Northern District of California in case no. 03-CV-2289,
Judge James Ware.
___________________________
Decided: November 23, 2011
___________________________
RICHARD G. FRENKEL, Latham & Watkins, LLP, of
Menlo Park, California, argued for plaintiff-appellee and
defendants-appellees. With him on the brief were RON E.
SHULMAN and TERRENCE J.P. KEARNEY .
KENNETH W. BROTHERS, Dickstein Shapiro, LLP, of
Washington, DC, argued for defendant-appellant and
plaintiff-appellant. With him on the brief were GARY M.
HOFFMAN, AMANDA S. PITCHER, and CATHY CHEN.
__________________________
Before LOURIE, BRYSON, and DYK, Circuit Judges.
DYK, Circuit Judge.
Ricoh Company, Ltd. (“Ricoh”) appeals the decision of
the United States District Court for the Northern District
of California awarding $938,957.72 in costs under 28
U.S.C. § 1920 to Aeroflex, Inc., et al., and Synopsys, Inc.
(collectively, “Synopsys”). In re Ricoh Co., Ltd. Patent
Litig., No. 03-CV-2289, slip op. at 16 (N.D. Cal. Sept. 29,
2010) (“Taxation Order”). We affirm in part, reverse in
part, vacate in part, and remand.
BACKGROUND
A dispute arose between Ricoh, the owner of U.S. Pat-
ent No. 4,922,432 (“the ’432 patent”) (directed to systems
and processes for the design of application-specific inte-
grated circuits) and Synopsys, which was alleged to sell
3 SYNOPSYS v. RICOH CO
software for an infringing process. In January 2003,
Ricoh filed a patent infringement action in the District of
Delaware against seven of Synopsys’s customers, all of
whom designed and manufactured computer chips using
Synopsys’s software, asserting that the manufacturing
process infringed the ’432 patent. In May 2003, Synopsys
responded by filing a declaratory judgment action against
Ricoh in the Northern District of California, seeking a
declaratory judgment of noninfringement, invalidity, and
unenforceability of the patent. The two actions were
eventually consolidated in the Northern District of Cali-
fornia. After nearly seven years of litigation, the district
court granted Synopsys’s motion for summary judgment
of noninfringement on April 15, 2010. We affirmed with-
out opinion. In re Ricoh Co., Ltd. Patent Litig., 412 F.
App’x 297, 298 (Fed. Cir. 2011).
After judgment was entered against Ricoh, Synopsys
filed a Bill of Costs seeking approximately $1.375 million
in costs. Ricoh objected to the Bill of Costs. Synopsys
filed an amended Bill of Costs seeking $1,208,616.09, to
which Ricoh again objected. The Clerk disallowed
$353,508.40 of the costs sought by Synopsys for a final
taxation of $855,107.69. At the request of both parties,
the District Court reviewed the Clerk’s taxation of costs
and increased the allowed costs to $938,957.72. The
district court stayed Ricoh’s payment of the costs pending
this court’s decision on the merits. Taxation Order, slip
op. at 16.
On November 12, 2010, the district court entered a
judgment, awarding costs in the amount of $938,957.72
plus applicable post-judgment interest. Ricoh timely
appealed. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(1).
SYNOPSYS v. RICOH CO 4
DISCUSSION
The Federal Rules of Civil Procedure provide that
“[u]nless a federal statute, these rules, or a court order
provides otherwise, costs . . . should be allowed to the
prevailing party.” Fed. R. Civ. P. 54(d)(1). Synopsys is
clearly the prevailing party. Section 1920, however,
“control[s] a federal court’s power to hold a losing party
responsible for the opponent’s . . . fees” by limiting what
costs can be awarded. Crawford Fitting Co. v. J.T. Gib-
bons, Inc., 482 U.S. 437, 444 (1987). In pertinent part,
section 1920 grants the district court the authority to tax
as costs
(2) Fees for printed or electronically recorded
transcripts necessarily obtained for use in the
case; . . .
(4) Fees for exemplification and the costs of mak-
ing copies of any materials where the copies
are necessarily obtained for use in the case;
[and] . . .
(6) Compensation of court appointed experts,
compensation of interpreters, and salaries,
fees, expenses, and costs of special interpreta-
tion services under section 1828 of this title.
28 U.S.C. § 1920. There are disputes as to three catego-
ries of costs taxed against Ricoh: the costs of an electronic
document database under subsection 4 ($234,702.43),
exemplification fees and copy costs under subsection 4
($322,515.71), and deposition and interpreter costs under
subsections 2 and 6 ($131,247.28). The total amount in
dispute is $688,465.42.
We apply regional circuit law, in this case Ninth Cir-
cuit law, in interpreting section 1920. See Summit Tech.,
Inc. v. Nidek Co., 435 F.3d 1371, 1374 (Fed. Cir. 2006).
5 SYNOPSYS v. RICOH CO
The burden is on the losing party to demonstrate why the
costs should not be awarded. Stanley v. Univ. of S. Cal.,
178 F.3d 1069, 1079 (9th Cir. 1999). A district court’s
award of costs is reviewed for abuse of discretion. Sum-
mit Tech., 435 F.3d at 1374; Miles v. California, 320 F.3d
986, 988 (9th Cir. 2003). However, whether a particular
expense falls within the purview of section 1920, and thus
may be taxed in the first place, is an issue of statutory
construction, subject to de novo review. Summit Tech.,
435 F.3d at 1374.
I
Ricoh contends that the district court erred in award-
ing $234,702.43 to Synopsys for Stratify, a third-party
electronic database service, representing the portion of
the database costs paid by Synopsys. A brief history of
the Stratify database is necessary. Ricoh sought the
production of e-mails and other internal documents from
Synopsys’s customers who used its software to design and
manufacture integrated circuits. The parties were unable
to agree on the form of production. Synopsys proposed
three alternatives—providing a hard copy production of
the e-mails, converting them to TIFF format and produc-
ing them as such, or loading them onto a local terminal at
its offices and allowing Ricoh’s counsel to review them on
site only. Ricoh objected to these forms of production,
demanding that the e-mails be produced in native format,
in their ordinary course of business. Ricoh suggested
doing so using Stratify, an electronic discovery company
that provides secure document processing, review, pro-
duction and hosting services, and that the costs be divided
between the parties. As described below, Synopsys agreed
to the use of Stratify and to the division of costs.
Synopsys contends that, because Stratify was used as
the exclusive means for producing e-mails, the full cost of
SYNOPSYS v. RICOH CO 6
Stratify is taxable as “fees for exemplification and the
costs of making copies of any materials where the copies
are necessarily obtained for use in the case” under section
1920(4). Ricoh in turn argues that Stratify does not fall
under section 1920(4) because it was a “document review
database” (as opposed to a form of document production)
for the convenience of counsel and not necessary for use in
the case.
Under section 1920(4), exemplification and copying
costs for producing documents in discovery are recover-
able. This is reflected in Northern District of California
Civil Local Rule 54-3(d)(2), which permits taxing “[t]he
cost of reproducing disclosure or formal discovery docu-
ments when used for any purpose in the case.” N.D. Cal.
Civ. R. 54-3(d)(2). Here, the district court did not abuse
its discretion in concluding that, absent a contrary
agreement such as we conclude existed in this case, costs
associated with Stratify were taxable because “the Strat-
ify database was used as a means of document production
in this case.” Taxation Order, slip op. at 13.
The act of producing documents is not so narrowly
construed as to cover only printing and Bates-labeling a
document. See Black’s Law Dictionary 1328 (9th ed.
2009) (defining “produce” as “[t]o provide (a document,
witness, etc.) in response to subpoena or discovery re-
quest”). In the era of electronic discovery, courts have
held that electronic production of documents can consti-
tute “exemplification” or “making copies” under section
1920(4). See, e.g., BDT Prods., Inc. v. Lexmark Int’l, Inc.,
405 F.3d 415, 420 (6th Cir. 2005) (“[E]lectronic scanning
and imaging could be interpreted as ‘exemplification and
copies of papers.’”). Notably, in 2008, Congress amended
section 1920(4) by replacing the phrase “copies of papers”
with “making copies of any materials,” Judicial Admini-
stration and Technical Amendments Act of 2008, Pub. L.
7 SYNOPSYS v. RICOH CO
No. 110-406, § 6, 122 Stat. 4291, 4292 (emphasis added),
to reflect the idea that “electronically produced informa-
tion [is] [re]coverable in court costs,” 154 Cong. Rec.
H10270, H10271 (daily ed. Sept. 27, 2008) (statement of
Rep. Zoe Lofgren). Thus, the costs of producing a docu-
ment electronically can be recoverable under sec-
tion 1920(4).
Here, it was Ricoh that initially suggested using
Stratify because it “addresses all of [Synopsys’s] integrity
and security concerns, while allowing you to easily comply
with the requirements for producing the email documents
in native format.” J.A. 3070. The district court did not
err in concluding that Synopsys’s act of making available
all of the requested e-mail to Ricoh through Stratify
constituted electronic production of the e-mail. We do not
consider any of the Stratify database costs to fall into the
unrecoverable category of “intellectual efforts.” See
Romero v. City of Pomona, 883 F.2d 1418, 1428 (9th Cir.
1989), overruled in part on other grounds by Townsend v.
Holman Consulting Corp., 929 F.2d 1358, 1363 (9th Cir.
1991). “Since the documents were produced in their
native form via the database,” Taxation Order, slip op. at
13, we hold that the basic Stratify costs would be recover-
able under section 1920(4), absent an agreement to the
contrary. In light of our decision, we need not decide if
the additional challenged items related to the database
were improperly allowed.
However, Ricoh argues in the alternative that the
parties agreed by contract to share the cost of Stratify,
and that this agreement precludes cost-shifting. There is
no question that parties may agree to share costs that
would otherwise be taxable. In Crawford, the Supreme
Court held “that absent explicit statutory or contractual
authorization for the taxation of the expenses of a liti-
gant’s witness as costs, federal courts are bound by the
SYNOPSYS v. RICOH CO 8
limitations set out in 28 U.S.C. § 1821 and § 1920.” 482
U.S. at 445 (emphasis added). In Monsanto Co. v. David,
516 F.3d 1009, 1012 (Fed. Cir. 2008), the parties had
entered into a technology agreement that provided that
certain costs, not otherwise allowable under section 1920,
would be paid to the party licensing the technology if it
had to enforce the agreement. We affirmed the district
court’s full award of costs to the prevailing party accord-
ing to the agreement because, under Crawford, section
1920 “does not set maximum costs around which private
parties may not contract.” Id. at 1017. If parties can
exceed the allowable costs under section 1920 by contract,
we see no reason why in light of Crawford they cannot
likewise limit the allowable costs under section 1920 by
contract.
There is scant authority from other circuits as to
whether a cost-sharing agreement between parties to
litigation is controlling as to the ultimate taxation of
costs. The primary circuit authority, Thomas v. Duralite
Co., held that it was “proper” to exclude from costs
awarded certain charges because “[t]he parties had
agreed to share the expense for [that] service.” 524 F.2d
577, 590 (3d Cir. 1975). 1
1 The other circuit authority concerning cost shar-
ing agreements, Saunders v. Washington Metropolitan
Area Transit Authority, is not relevant here. 505 F.2d 331
(D.C. Cir. 1974). Saunders involved a challenge to a
taxation of costs in favor of the prevailing party for print-
ing the joint appendix in light of an agreement to share
those costs. Id. at 333. In this context, the agreement to
share costs was simply implementing the initial cost-
sharing provisions of Federal Rule of Appellate Procedure
30(b): “Unless the parties otherwise agree, the cost of
producing the appendix shall initially be paid by the
appellant . . . .” Id. at 333–34 n.14 (emphasis added)
(citing Fed. R. App. P. 30(b)).
9 SYNOPSYS v. RICOH CO
Here, there is no dispute that Synopsys agreed to
share the cost of the Stratify database with Ricoh. Syn-
opsys originally proposed that Ricoh “agree to pay half of
the costs associated with producing [Synopsys’s] e-mails.”
J.A. 3062. When Ricoh later suggested using Stratify to
produce the e-mails, it agreed that “[t]he cost would be
divided between the parties.” J.A. 3069. The parties then
implemented this arrangement by entering into a 14-page
agreement with Stratify in which they jointly retained
Stratify to perform electronic discovery services. The
parties characterized this agreement as a cost-sharing
agreement, but never indicated that the cost-sharing was
only temporary. Communications between the parties
after the agreement with Stratify was executed continued
to reflect the cost-sharing agreement. See, e.g., J.A. 3396
(“Accordingly, we . . . will split the cost, pursuant to the
contract, of the additional databases.”). There is no
indication in any of the extensive communications be-
tween the parties that they intended this cost-sharing
agreement to be anything other than a final settlement of
the cost of the Stratify database. If the cost-sharing
agreement were designed to be only an interim agree-
ment, it seems likely that there would have been some
indication to that effect in either the communications
between counsel or the agreement with Stratify. Under
these circumstances, the parties’ agreement is best inter-
preted as agreeing to a final, not an interim, sharing of
costs.
The parties’ agreement to share the cost of the Strat-
ify database is controlling, and we reverse the district
court’s award of $234,702.43 for Synopsys’s share of the
database.
SYNOPSYS v. RICOH CO 10
II
Ricoh next challenges $322,515.71 of document copy-
ing costs under section 1920(4). The parties do not dis-
pute that Synopsys is entitled to recover from Ricoh the
copying and exemplification costs directly associated with
discovery material tendered to Ricoh. In fact, Ricoh is not
challenging $146,584.83 of Synopsys’s copying costs
because they were clearly incurred in copying Synopsys’s
discovery production for Ricoh. The focus of the dispute
here is on whether the other $322,515.71 in copying costs
claimed by Synopsys are in fact associated with docu-
ments tendered to Ricoh and copied for Ricoh. We note at
the outset that both parties’ briefs were not as helpful as
they should have been in assisting us to resolve this
dispute.
Under section 1920, the “costs of making copies of any
materials” are recoverable “where the copies are necessar-
ily obtained for use in the case.” 28 U.S.C. § 1920(4).
This does not require, however, that the copies actually be
used in the case or made part of the record. Haagen-Dazs
Co. v. Double Rainbow Gourmet Ice Creams, Inc., 920 F.2d
587, 588 (9th Cir. 1990). The Local Rules further provide
that under section 1920(4), although “[t]he cost of repro-
ducing copies of motions, pleadings, notices, and other
routine case papers is not allowable,” N.D. Cal. Civ. L.R.
54-3(d)(3), “[t]he cost of reproducing disclosure or formal
discovery documents when used for any purpose in the
case is allowable,” id. at 54-3(d)(2). Thus, the prevailing
party can recover, as costs for reproduction and exemplifi-
cation under section 1920(4), the costs incurred in prepar-
ing a single copy of the original documents produced for
the opposing party where that copy is supplied to the
opposing party. See Stearns Airport Equip. Co. v. FMC
Corp., 170 F.3d 518, 536 (5th Cir. 1999).
11 SYNOPSYS v. RICOH CO
“[T]he burden is on the prevailing [party] to establish
the amount of compensable costs and expenses to which
they are entitled. Prevailing parties necessarily assume
the risks inherent in a failure to meet that burden.”
English v. Colo. Dep’t of Corr., 248 F.3d 1002, 1013 (10th
Cir. 2001) (alteration in original) (internal quotation
marks omitted). Accordingly, the Local Rules require
“[a]ppropriate documentation to support each item
claimed.” N.D. Cal. Civ. R. 54-1(a). In addressing the
prevailing party’s burden to establish and support the
amount to which it is entitled, other circuits have held
that a list of costs and expenses must be adequately
detailed, identifying the purpose of each expenditure,
English, 248 F.3d at 1013, and not “filled with generic
references such as ‘transcripts,’ ‘publication,’ and ‘docu-
ment production,’” Fabi Constr. Co. v. Sec’y of Labor, 541
F.3d 407, 414 (D.C. Cir. 2008). Section 1920 allows the
recovery of costs for a prevailing party who establishes
that the copied documents were produced by it pursuant
to Rule 26 or other discovery rules and that the copies
were requested by, and supplied to, the opposing party.
The district court held that the disputed copying costs
were recoverable because they “were primarily incurred in
connection with the parties’ document productions” and
“Synopsys provided invoices with sufficient detail as
required by the Local Rules.” Taxation Order, slip op. at
11. We disagree and conclude that Synopsys did not meet
its burden under section 1920 to establish the amount of
costs to which it is entitled. After reviewing the documen-
tation filed by Synopsys with respect to these disputed
reproduction and exemplification costs, we find that the
invoices and itemized spreadsheet accompanying Exhibit
E were not specific enough to permit the taxation of those
costs. In considering the invoices in Exhibits E through G
of Synopsys’s Revised Bill of Costs, we are unable in many
SYNOPSYS v. RICOH CO 12
instances to determine what documents were being repro-
duced and to which side the copies were ultimately pro-
vided. For example, Item 74 of Exhibit E, a $789.75
invoice for 6,344 copies, only states, “Medium Handling
Litigation Copies. 3 Box originals copy x 1.” J.A. 1969.
The entry for Item 74 in the spreadsheet itemizing the
invoices simply states “Document production.” J.A. 1790.
In fact, many of the invoices and entries in the itemized
spreadsheet accompanying Exhibit E simply state the
copies were for “Document production.”
The phrase “document production” on an invoice does
not automatically signify that the copies were produced to
opposing counsel. “Document production” and other
similarly generic statements on the invoices are unhelpful
in determining whether those costs are taxable. See Fabi
Constr. Co., 541 F.3d at 414. Many firms make copies of
all documents they produce to the other side for their own
records. Furthermore, many of the invoices at issue here
indicate Howrey LLP, counsel for Synopsys, as the party
to which the copied documents were shipped, thus raising
the question whether those documents were tendered to
Ricoh’s counsel. When the prevailing party seeks to
recover copying costs related to its own document produc-
tion, to meet the documentation requirements, the pre-
vailing party must establish, in connection with its
proposed Bill of Costs, that the reproduced documents
were produced by it pursuant to Rule 26 or other discov-
ery rules; that they were copied at the prevailing party’s
expense and at the request of the opposing party; and that
the copies were tendered to the opposing party. To be
sure, “in complex patent litigation involving hundreds of
thousands of documents and copies, parties cannot be
expected to track the identity of each photocopied page
along with a record of its relevance to the litigation.”
Summit Tech., 435 F.3d at 1378. But, “a bill of costs must
13 SYNOPSYS v. RICOH CO
represent a calculation that is reasonably accurate under
the circumstances.” Id. at 1380.
In light of the inadequate documentation, the district
court abused its discretion in awarding $322,515.71 for
reproduction and exemplification disputed by Ricoh. 2 At
the same time it is far from clear that the $146,584.83
conceded by Ricoh represents the full costs of copying the
documents produced for Ricoh. Under the circumstances
we think the best course is to vacate the district court’s
award in this respect and to remand to the district court
for further consideration. 3
On the remand, we do not foreclose the district court
from awarding additional copying costs based on further
documentation and/or affidavits from the parties that
demonstrate that the copies were produced pursuant to
Rule 26 or other discovery rules and that the copies were
ultimately provided to Ricoh. 4 The district court may
2 We recognize that the district court “reduced the
taxable amount for exemplification by $32,742.61, which
is the amount associated with extra copies and CD/DVDs
that do not appear to be reasonably necessary.” Taxation
Order, slip op. at 11 n.20. But this reduction was ad-
dressed to a different problem.
3 Ricoh also challenges an award of costs for ship-
ping fees and document assembly fees for tabs and fold-
ers. The district court would not abuse its discretion in
awarding such costs if they related to categories of docu-
ments as to which the recovery of reproduction costs
under section 1920(4) is appropriate.
4 We note an additional dispute as to whether Syn-
opsys should be able to recover costs for blowback copies
of documents produced in electronic form for Ricoh. Ricoh
represented at oral argument that no such blowback
copies were requested. Oral Arg. at 37:04–37:31, avail-
able at http://www.cafc.uscourts.gov/oral-argument-
recordings/search/audio.html (search “Appeal Number”
for “2011-1199”) (“Ricoh never requested blowbacks.
SYNOPSYS v. RICOH CO 14
choose to make a reasonable estimate of recoverable
copying costs based on an estimate of the total number of
pages of discovery that Ricoh requested be copied multi-
plied by a reasonable price per page.
III
Last, Ricoh challenges the award of $102,070.67 in
costs for transcriptions of depositions that it believes were
not reasonably necessary, as well as $29,176.61 in inter-
preter fees incurred during those depositions. Ricoh first
argues that only six depositions were used in connection
with the successful summary judgment motion, and thus
Synopsys can recover only those costs related to the six
depositions. Synopsys contends that the district court
properly exercised its discretion to award these costs
because at the time the depositions were taken, it was
reasonable to expect that they would be used for trial
preparation.
Section 1920(2) permits the taxation of “[f]ees for
printed or electronically recorded transcripts necessarily
obtained for use in the case.” Thus, because the award of
costs for deposition transcripts is within the scope of
section 1920, the district court’s decision to tax the cost of
all depositions, not just those used in the motion for
summary judgment, is reviewed for abuse of discretion.
See Miles, 320 F.3d at 988. Ninth Circuit precedent is
clear that a document need not be offered as evidence to
have been necessarily obtained for use in the case. Haa-
gen-Dazs, 920 F.2d at 588; see also Crockett v. Shields, 8
These were documents produced in electronic form to
Ricoh and what Synopsys chose to do and whether it
wanted to make hard copies for its own convenience was
its decision.”). If the district court determines that Ri-
coh’s representation is accurate, the blowback copy costs
should not be allowed.
15 SYNOPSYS v. RICOH CO
F. App’x 604, 606 (9th Cir. 2001) (“The depositions need
not have been used at trial to be ‘necessarily obtained for
use in the case.’”). However, depositions “merely useful
for discovery” are not taxable “and their expense should
have been borne by the party taking them, as incidental
to normal preparation for trial.” Indep. Iron Works, Inc. v.
U.S. Steel Corp., 322 F.2d 656, 678 (9th Cir. 1963); see
also 10 Charles Alan Wright, Arthur R. Miller & Mary
Kay Kane, Federal Practice and Procedure § 2676 (3d ed.
1998) (“When a deposition is not actually used at trial or
as evidence on some successful preliminary motion,
whether its cost may be taxed generally is determined by
deciding if the deposition reasonably seemed necessary at
the time it was taken.”).
Here, the district court taxed Ricoh for all depositions
taken in the case because they “were taken in connection
with several relevant aspects of the case, from validity to
damage issues. As such, at the time the depositions were
taken, it was reasonable to expect that they were for the
purpose of trial preparation.” Taxation Order, slip op. at
15 (citation omitted). This finding was within the discre-
tion of the district court. Because translation was neces-
sary in connection with a number of these depositions,
those costs are taxable under section 1920 as well. See
Taniguchi v. Kan Pac. Saipan, Ltd., 633 F.3d 1218, 1221–
22 (9th Cir. 2011).
Ricoh argues in the alternative that the taxation
should be reduced by $43,217.85 because the district court
taxed it for costs associated with both a written transcript
and the video. Section 1920(2) provides that costs associ-
ated with “[f]ees for printed or electronically recorded
transcripts necessarily obtained for use in the case” are
taxable. 28 U.S.C. § 1920(2) (emphasis added). Local Rule
54-3(c)(1) further states that “[t]he cost of an original and
one copy of any deposition (including videotaped deposi-
SYNOPSYS v. RICOH CO 16
tions) taken for any purpose in connection with the case is
allowable.” N.D. Cal. Civ. R. 54-3(c)(1).
The district court concluded that “[a]llowing recovery
for both of these fees is more in accord with the language
of the Local Rules, along with commonplace practice in
patent litigation of videotaping deponents.” Taxation
Order, slip op. at 10. Although the Ninth Circuit has not
addressed this issue, the district court’s decision that such
costs are allowable comports with other circuit decisions
interpreting section 1920(2). See Tilton v. Capital Cit-
ies/ABC, Inc., 115 F.3d 1471, 1478 (10th Cir. 1997)
(“[T]he district court did not abuse its discretion in taxing
the costs of both the preparation and transcription of the
seven videotaped depositions.”); BDT Prods., 405 F.3d at
420. The Courts of Appeals decisions in Tilton and BDT
predated the 2008 amendment to section 1920(2) that
specifically provided for an award of fees “for printed or
electronically recorded transcripts,” Pub. L. No. 110-406,
§ 6, 122 Stat. 4291, 4292, but there is no indication in the
text or history of that amendment that Congress intended
to overrule those decisions. Consistent with the Sixth and
Tenth Circuits, we think that the correct interpretation of
section 1920 is that the costs constitute taxable costs. 5
5 We note that district courts in the Northern Dis-
trict of California have reached divergent results inter-
preting Local Rule 54-3(c)(1) on whether the court can tax
both the written transcript and the video of a deposition.
Compare Hynix Semiconductor v. Rambus Inc., 697 F.
Supp. 2d 1139, 1150 (N.D. Cal. 2010) (“The cost of . . . a
copy of the videotape and written transcript are taxable
costs.”), with Pierson v. Ford Motor Co., No. C 06-6503,
2010 WL 431883, at *4 (N.D. Cal. Feb. 2, 2010) (“[T]he
cost of only one method of recording the deposition is
allowable.”). Although “[d]istrict courts have broad dis-
cretion in interpreting and applying their local rules,”
Miranda v. S. Pac. Transp. Co., 710 F.2d 516, 521 (9th
Cir. 1983), local rules cannot render disallowable costs
17 SYNOPSYS v. RICOH CO
Therefore, the district court did not exceed its authority
under section 1920 in taxing both the written transcrip-
tion and the video of the depositions.
* * *
We therefore affirm the award of costs related to the
depositions, reverse the award of costs on the Stratify
discovery database, vacate the award of copying costs, and
remand for further proceedings consistent with this
opinion.
AFFIRMED-IN-PART, REVERSED-IN-PART,
VACATED-IN-PART and REMANDED
COSTS
No costs.
otherwise allowable under section 1920. Fed. R. Civ. P.
83(a) (“A local rule must be consistent with . . . federal
statutes . . . .”); In re Baby Food Antitrust Litig., 166 F.3d
112, 139 (3d Cir. 1999) (“[T]o the extent that it conflicts
with Section 1920, [the local rule] must give way.”); see
also Hajek v. Burlington N. R.R. Co., 186 F.3d 1105, 1110
(9th Cir. 1999).