Tevra Brands LLC v. Bayer HealthCare LLC, et al

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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
TEVRA BRANDS LLC,
Plaintiff,
v.
BAYER HEALTHCARE LLC, et al.,
Defendants.
Case No. 5:19-cv-04312-BLF
ORDER GRANTING-IN-PART AND
DENYING-IN-PART DEFENDANT'S
MOTION FOR REVIEW OF THE
CLERK'S TAXATION OF COSTS
[Re: ECF No. 531]
Before the Court is Defendant Bayer Healthcare LLC’s (“Bayer’s”) motion for review of
the Clerk’s taxation of costs. ECF No. 531 (“Mot.”); see also ECF No. 533 (“Reply”). Plaintiff
Tevra Brands LLC (“Tevra”) opposes the motion. See ECF No. 532 (“Opp.”). The Court finds
the motion suitable for adjudication without oral argument and VACATES the hearing set for
January 29, 2026. See Civ. L.R. 7-1(b).
For the reasons described below, the Court GRANTS-IN-PART and DENIES-IN-PART
Bayer’s Motion.
I. BACKGROUND
As the prevailing party in this private antitrust suit, Bayer filed a Bill of Costs on
August 15, 2024. ECF No. 494 (“Bill”). Bayer also filed an attached declaration from Daniel B.
Asimow, counsel of record for Bayer, and invoices reflecting costs. ECF No. 494-1 (“Asimow
Decl.”); see also ECF Nos. 494-2–494-11. Bayer sought to recover six categories of costs,
totaling $1,266,238.44: (1) $23,568.65 for trial and hearing transcripts, (2) $55,355.40 for
deposition transcripts and recordings, (3) $1,094,529.71 for e-discovery costs, (4) $44,654.32 for
trial exhibits, (5) $31,645.59 for visual aids, and (6) $16,484.77 for witness expenses. Bill at 1–2.
Tevra filed Objections to Bayer’s Bill of Costs on August 29, 2024, in which it admitted Bayer’s
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entitlement to costs of $45,666.05. ECF No. 506 (“Objs.”).
On September 2, 2025, the Clerk of the Court taxed costs in the amount of $45,666.05,
including (1) $0.00 for trial and hearing transcripts, (2) $18,424.85 for deposition transcripts and
recordings, (3) $145 for e-discovery costs, (4) $10,197.66 for trial exhibits, (5) $413.77 for visual
aids, and (6) $16,484.77 for witness expenses. ECF No. 528 (“Order”), at 1–2. Bayer moves for
the Court to review the Clerk’s calculation of costs for the first five categories and order that it is
entitled to recover $1,165,217.67.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 54(d) provides that “[u]nless a federal statute, these rules,
or a court order provides otherwise, costs—other than attorney’s fees—should be allowed to the
prevailing party.” Fed. R. Civ. Pro. 54(d)(1). The Ninth Circuit has held that Rule 54(d) creates a
presumption that the prevailing party in a civil suit will be awarded its taxable costs. See Dawson
v. City of Seattle, 435 F.3d 1054, 1070 (9th Cir. 2006) (“Under Federal Rule of Civil Procedure
54(d), there is a presumption that the prevailing party will be awarded its taxable costs.”). This is
a “strong presumption,” with a heavy burden on the non-prevailing party to show why taxable
costs are not recoverable. Miles v. California, 320 F.3d 986, 988 (9th Cir. 2003). Rule 54 “vests
in the district court discretion to refuse to award costs.” Ass’n of Mexican Am. Educators
v. California, 231 F.3d 572, 591 (9th Cir. 2000). While a district court need not give reasons for
awarding taxable costs to the prevailing party, it must “specify reasons” for refusing to award
taxable costs to the prevailing party. Save Our Valley v. Sound Transit, 335 F.3d 932, 945
(9th Cir. 2003).
28 U.S.C. § 1920 enumerates the costs that federal courts may assess. See Crawford
Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441 (1987). The Civil Local Rules for the
Northern District of California (“Civil Local Rules”) set forth additional standards for taxing costs
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in this district. Civil Local Rule 54-1(a) provides that the bill of costs “must state separately and
specifically each item of taxable costs claimed” and “must be supported by an affidavit . . . that the
costs are correctly stated, were necessarily incurred, and are allowable by law.” Although there is
a strong presumption in favor of awarding taxable costs, the prevailing party bears the initial
burden of demonstrating the amount of costs that are taxable under the Civil Local Rules. In re
Ricoh Co., Ltd. Patent Litig., 661 F.3d 1361, 1364–67 (Fed. Cir. 2011) (applying Ninth Circuit
law) (“The burden is on the prevailing party to establish the amount of compensable costs and
expenses to which they are entitled.”).
On a motion for review of costs, the district court reviews the Clerk’s determination de
novo. Pac. Coast Bldg. Prods., Inc. v. CertainTeed Gypsum, Inc., No. 18-cv-346-LHK, 2019 WL
8137133, at *3 (N.D. Cal. Dec. 5, 2019).
III. DISCUSSION
A. Hearing and Trial Transcripts
Local Civil Rule 54-3(b)(1) provides that “[t]he cost of transcripts necessarily obtained for
an appeal is allowable.” Bayer requested $23,568.65 in taxable costs pursuant to Civil Local
Rule 54-3(b)(1) and 28 U.S.C. § 1920(2) “for trial and key hearing transcripts necessarily obtained
for use in this case.” Asimow Decl. ¶ 5; Bill at 1. In support of its request, Bayer attached
invoices for transcripts of trial proceedings for $21,100.50 and invoices for transcripts of several
pretrial hearings totaling $2,468.15. ECF No. 594-2. Tevra disputed Bayer’s assertion that the
transcript charges were covered by Local Civil Rule 54-3(b)(1). Objs. at 2. The Clerk agreed,
denying the transcript costs in their entirety as outside the ambit of Civil Local Rule 54-3. Order
at 1.
Bayer now argues that it is entitled to costs for the trial and hearing transcripts because
they were necessarily obtained to prepare for Tevra’s appeal. Mot. at 3. Tevra responds that the
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transcripts could not have been necessarily obtained for appeal because Bayer filed its Bill of
Costs before Tevra filed its notice of appeal. Opp. at 2. The Court agrees with Bayer that the fact
that it filed its Bill of Costs prior to Tevra’s notice of appeal does not preclude recovery. See City
of Alameda v. Nuveen Mun. High Income Opportunity Fund, No. 08-cv-4575-SI, 2012 WL
177566, at *4 (N.D. Cal. Jan. 23, 2012) (rejecting the same argument). In fact, doing so was
necessary to comply with the Civil Local Rules, which require the prevailing party to file a Bill of
Costs within 14 days after entry of judgment. Civ. L.R. 54-1(a).
“Courts in the Northern District generally allow for recovery of costs for one copy of the
trial transcript.” Apple Inc. v. Samsung Elecs. Co., No. 11-cv-01846-LHK, 2014 WL 4745933,
at *7 (N.D. Cal. Sept. 19, 2014). In any case, the Court sees no reason to depart from the
presumption of costs to the prevailing party where, as here, the case involves the type of
contentiously litigated proceedings in which “the parties so often made arguments based on the
words very recently spoken by participants or by the court” so as to render ordering trial
transcripts nearly essential for appeal. Affymetrix, Inc. v. Multilyte Ltd., No. 03-cv-3779-WHA,
2005 WL 2072113, at *2 (N.D. Cal. Aug. 26, 2005) (internal quotation marks and citation
omitted); see also TransPerfect Global, Inc. v. MotionPoint Corp., No. 10-cv-2590-CW, 2014 WL
1364792, at *3 (N.D. Cal. Apr. 4, 2014) (holding that prevailing party was entitled to award of
costs for daily transcripts obtained in anticipation of appeal). The Court concludes that Bayer is
entitled to costs reflecting the $21,100.50 incurred in obtaining the trial transcript.
The Court also finds that Bayer is entitled to the cost of obtaining transcripts of the
hearings of the Daubert motion, summary judgment motion, and motion to dismiss the second
amended complaint because “major issues related to the disposition of Plaintiff’s claims were
raised and addressed” at these hearings. Competitive Techs. v. Fujitsu Ltd., No. 02-cv-1673-JCS,
2006 WL 6338914, at *6 (N.D. Cal. Aug. 23, 2006); see also eBay Inc. v. Kelora Sys., LLC,
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No. 10-cv-4947-CW, 2013 WL 1402736, at *11 (N.D. Cal. Apr. 5, 2013) (“[C]ourts allow costs
for transcripts of important hearings.”). These transcripts totaled $1,267.20. Asimow Decl. ¶ 6.
On the other hand, the Court does not find that Bayer has shown that the cost of obtaining
transcripts for other hearings were necessarily obtained for appeal. The Court accordingly finds
that Bayer is not entitled for costs associated with obtaining the transcripts for those hearings. See
Apple, 2014 WL 4745933, at *8; TransPerfect Global, 2014 WL 1364792, at *4.
The Court awards $22,767.20 in transcript costs.
B. Deposition Transcript and Recording
Local Civil Rule 54-3(c)(1) provides that “[t]he cost of an original and one copy of any
deposition (including videotaped depositions) taken for any purpose in connection with the case is
allowable.” Bayer requested $55,355.40 in taxable costs “for one transcript and one video
recording for each deposition taken in connection with this case.” Asimow Decl. ¶ 7; Bill at 1. In
support of its request, Bayer attached invoices for the transcription of twenty-two depositions.
ECF No. 594-2. Many of these invoices included fees for other services, and Tevra objected that
Bayer’s invoices demonstrated “double-, triple-, and even quadruple-billing for certain transcripts
including charges for rough drafts, real time, and original copies of the transcripts.” Obj. at 3
(internal quotation marks omitted). The Clerk allowed $18,424.85 of these costs, disallowing
remaining costs as excessive.1 Order at 1.
Bayer has amended its claimed amount to $40,929.15 to “reduce any additional charges
incurred for the use of realtime and delivery of rough draft transcripts.” Mot. at 5. Tevra urges
that, because Bayer has effectively conceded that its claimed costs were excessive, “[t]he
excessive claims made by Bayer should permit the wholesale denial of costs.” Opp. at 3. The
1 The Court agrees with Bayer that the Clerk’s statutory citation in the Bill of Costs appears to be
in error.
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Court does not find wholesale denial appropriate and considers the costs associated with each of
the depositions taken in this case.
As a preliminary matter, Bayer concedes that it is not entitled to additional costs incurred
in relation to the depositions of Jerial Chua, David Zapatero, Jeremy Page, Scott Bauer, Chris
Diesel, Denise Winslow, Mason Williams, Thad Howell, Tadas Zolynas, and Craig Reinert. Mot.
at 5.
Bayer argues that it is entitled to the fees it incurred to obtain video recordings of certain
depositions. Specifically, Bayer argues that it is entitled to costs for (1) appearance fees and
videographer fees for the in-person depositions of Monica Tracy, Tami Phillips, Jim Corcuera, and
Matthew Wodecki and (2) remote hosting fees for the remote depositions of Aaron Shaddy, Ryan
Finstad, Robert Scharf (Feb. 23, 2023), and Olaf Hansen. Mot. at 5. Tevra does not meaningfully
contest the argument. “[C]ourts in this district have allowed costs for deposition video recordings
where the circumstances of the case warrant duplicate copies of both a videotape and written
transcript of a deposition.” Shields v. Fed’n Internationale de Natation, No. 18-cv-07393-JSC,
2023 WL 8360169, at *2 (N.D. Cal. Nov. 17, 2023) (internal quotation marks omitted). The Court
finds that Bayer has adequately demonstrated its entitlement to costs including (1) the $100
appearance fee for in-person depositions, (2) the $150/hour videographer rate for in-person
depositions, and (3) the $200/hour hosting rate for remote depositions. See ECF No. 594-3. The
Court also finds that the reduced fees Bayer seeks in connection with the depositions of Dr. Paul
Wong, Dr. Celeste Saravia, and Andrew Richmond, see Mot. at 6–7, are allowed and adequately
supported by the accompanying declaration, see Asimow Decl. ¶ 7.
Bayer also argues that it is entitled to costs incurred for the depositions of Dr. Michele
Roberts and the two additional depositions of Mr. Scharf held on July 12, 2024, and on July 19,
2024, for which the Clerk awarded no costs. Mot. at 6. Tevra responds that Bayer is not entitled
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to any costs incurred for the depositions because Dr. Roberts’s deposition was not used at trial and
because the additional depositions of Dr. Scharf were requested by Bayer. Opp. at 5. The Court
finds that Bayer is entitled to costs for these depositions. The fact that the transcripts were not
used at trial does not preclude recovery. See Haagen-Dazs Co., Inc. v. Double Rainbow Gourmet
Ice Creams, Inc., 920 F.2d 587, 588 (9th Cir. 1990) (per curiam); Ricoh, 661 F.3d at 1369–70.
The Court declines, however, to award “additional fees incurred for a same day expedited
transcript” simply because Mr. Scharf’s depositions were taken close to trial. Mot. at 6; see
Intermedics, Inc. v. Ventritex, Inc., No. 90-cv-20233-JW, 1993 WL 515879, at *3 (N.D. Cal.
Dec. 2, 1993), aff’d sub nom., Intermedics, Inc. v. Ventritex Co. Inc., 39 F.3d 1196 (Fed. Cir.
1994) (“The normal practice in the Northern District is to disallow any postage and handling
charges that exceed the rate of regular first-class mail plus handling.”). The Court awards $313.60
for Dr. Roberts’s deposition, $1,085.00 for Mr. Scharf’s July 12, 2024, deposition, and $3,587.50
for Mr. Scharf’s July 19, 2024, deposition.
The Court awards $39,285.85 in deposition costs.
C. E-Discovery Costs
28 U.S.C. § 1920(4) authorizes costs for “[f]ees for exemplification and the costs of
making copies of any materials where the copies are necessarily obtained for use in the case.” The
Local Civil Rules interpret the statute to provide that “[t]he cost of reproducing disclosure or
formal discovery documents when used for any purpose in the case is allowable.” Civ. L.R. 54-
3(d)(2). Bayer requested $1,094,529.71 in costs for “e-discovery costs associated with file
processing, uploads, and reproducing documents.” Asimow Decl. ¶ 10. In support of its request,
Bayer attached a list of fees and disbursements from Arnold & Porter Kaye Scholer LLP showing
fees associated with uploading and hosting the Tevra-produced documents totaling $76,606.20 and
a spreadsheet showing fees and expenses paid to UnitedLex for costs associated with uploading,
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processing, producing, and hosting Bayer and third-party documents totaling $1,017,923.51. See
ECF Nos. 594-5, 594-6. Tevra objected that Bayer failed to meet its burden to demonstrate that
the costs are recoverable and accused Bayer of “mix[ing] in hundreds of thousands of dollars in
costs improperly denominated as generic ‘fees’ or ‘expenses’ that are clearly not recoverable.”
Objs. at 3. The Clerk awarded $145.00, finding that Bayer’s supporting documentation did not
support the full amount claimed. Order at 1.
Most of the costs Bayer seeks pursuant to 28 U.S.C. § 1920(4) are for fees incurred in
electronically hosting documents. Bayer “acknowledges that there is a split of authority” as to
whether such costs are taxable but urges that “the better view is to treat [them] as taxable,
especially in a case where the documents were numerous due to Tevra’s many requests.” Reply
at 4. The Court disagrees. The Ninth Circuit’s decision in In re Online DVD-Rental Antitrust
Litig., 779 F.3d 914 (9th Cir. 2015), is instructive. There, the defendants used e-discovery
vendors to assist with responding to discovery requests and were awarded charges for the
“reproduction of documents for potential production into a database where they could be viewed”
and the “process of reproducing the collection of documents actually being produced for viewing
after all the processes necessary to prepare the documents in the required formats and with the
required labels have been completed.” Id. at 929. In holding that these costs were not cognizable
under section 1920(4), the Ninth Circuit explained:
A narrow construction of § 1920(4) requires recognition that the
circumstances in which a copy will be deemed “necessarily obtained”
for use in a case will be extremely limited. That a chosen “document
production process” requires the creation of a copy does not establish
that the copy is necessarily obtained for use in the case. A lawyer
may review electronically stored information for privilege either by
viewing the original documents on the client’s computer or,
alternatively, by viewing copies uploaded to the lawyer’s computer.
Although the latter method of review requires the creation of a copy,
the ability to conduct the review by looking at the original document
establishes that the uploaded copy was not necessarily obtained for
use in the case.
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Id. at 929–30. Courts in this district have similarly concluded that such costs are not
taxable. See, e.g., Phoenix Techs. Ltd. v. VMWare, Inc., No. 15-cv-01414-HSG, 2018 WL
4700347, at *5 (N.D. Cal. Sept. 30, 2018) (“A narrow construction of the statute requires
concluding that costs should be awarded based on what Defendant produced, not on what
Defendant uploaded to its e-discovery platform.”). To the extent that Bayer urges that the length
of the proceedings in this trial rendered e-storage “the most efficient method,” Reply at 4, the
authority it cites does not support its position here, since, “based on the invoices submitted the
Court cannot discern whether these costs involved some intellectual efforts or were part of normal
discovery retention performed by attorneys,” which are not taxable. Mendoza v. Lithia Motors,
Inc., No. 16-cv-01264-AA, 2021 WL 354108, at *5 (D. Or. Feb. 2, 2021).
Bayer seeks other costs incurred for “uploading, processing, and producing documents in a
format that is in compliance with the ESI Protocol entered into in this case.” Asimow Decl.
¶ 13(a). But as Tevra points out, the exhibits that Bayer included with its Bill of Costs include
“hundreds of individual line items for ‘detailed hourly fees’ or expenses’” that “routinely reflect
descriptions . . . of non-taxable costs.” Opp. at 7. Although Rule 54 creates a presumption in
favor of Bayer as the prevailing party, it still has the obligation to “itemiz[e] its costs with enough
detail to establish that each expense is taxable under section 1920.” Plantronics, Inc. v. Aliph,
Inc., No. 09-cv-01714-WHA, 2012 WL 6761576, at *3 (N.D. Cal. Oct. 23, 2012); see also Oracle
America, Inc. v. Google, Inc., No. 10–cv-03561-WHA, 2012 WL 3822129, at *3 (N.D. Cal.
Sept. 4, 2012). The Court agrees with the Clerk that under the circumstances Bayer’s supporting
documentation does not justify the costs it seeks.
The Court awards $145.00 in e-discovery costs.
D. Trial Exhibits
Local Civil Rule 54-3(d)(4) provides that “[t]he cost of reproducing trial exhibits is
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allowable to the extent that a Judge requires copies to be provided.” Bayer requested $44,654.32
for “the expense of printing one set of hard-copy trial exhibits for the Court, and for costs
associated with printing trial witness examination binders comprising direct examination and/or
cross-examination exhibits in sufficient numbers to provide copies to the witness, the Court, and
counsel.” Asimow Decl. ¶ 14. In support of its request, Bayer attached an invoice from Digital
One Legal Solutions showing fees associated with printing a set of hard-copy trial exhibits totaling
$21,983.07 and a list of fees and disbursements from Arnold & Porter Kaye Scholer LLP showing
fees associating with compiling trial witness examination binders totaling $22,671.25. See ECF
Nos. 494-8, 494-9. Tevra objected that these “were voluntary expenses by Bayer for the
convenience of counsel and not necessarily incurred for trial or required by the Court.” Objs. at 8.
The Clerk allowed $10,197.66, finding that the supporting documentation did not support the full
amount claimed. Order at 2.
Bayer argues that it is entitled to costs of $15,990.75 for the fees associated with printing
hard copy trial exhibits that were jointly submitted in 28 binders to the Court as required by the
Court’s Standing Order.2 Mot. at 10. Tevra responds that “tabs” and “binders” are overhead
office supplies that are not created for trial and should be absorbed by counsel. Opp. at 12. But
the tabs and binds were required to submit the 857 trial exhibits in a form that complied with the
Court’s Standing Order, which requires that “[b]oth sets of exhibits—the original and the copy—
shall be in three-ring binders with the exhibits separated by tabs denoting the exhibit numbers.”
Standing Order, III.B.3. The Court thus agrees with Bayer that it is entitled to the costs for
printing hard copy trial exhibits as required by the Court.
Bayer argues that it is entitled to costs of $22,671.25 for the fees associated with creating
2 Bayer concedes that it is only entitled to costs for one sets of hard copy trial exhibits and
withdraws its request for $5,992.32 incurred for the first set. Mot. at 10.
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trial witness examination binders. Mot. at 10. Tevra responds only that these binders were
“excessive for a trial lasting less than two weeks and less than 20 live witnesses.” Opp. at 12. The
Court disagrees. Courts in this district have held that costs for witness binders are “necessary and
allowable.” Golden Bridge Tech., Inc. v. Apple Inc., No. 12-cv-4882-PSG, 2015 WL 13427805,
at *3 (N.D. Cal. Dec. 21, 2015), aff’d, 673 F. App’x 1010 (Fed. Cir. 2017).
The Court awards $38,662.00 in costs for trial exhibits.
E. Visual Aids
Local Civil Rule 54-3(d)(5) provides that “[t]he cost of preparing charts, diagrams,
videotapes, and other visual aids to be used as exhibits is allowable if such exhibits are reasonably
necessary to assist the jury or the Court in understanding the issues at the trial.” Bayer requested
$31,645.59 in costs “for the cost of preparing visual aids (including charts and diagrams)
presented to the jury and the Court in this case, which were reasonably necessary to assist the jury
in understanding the complex legal and factual issues in this case.” Asimow Decl. ¶ 17. In
support of its request, Bayer attached an invoice from Fulcrum Legal Graphics, Inc. showing fees
paid for preparing trial visuals and an invoice from Digital One Legal Solutions showing fees paid
for preparing visual aids used at the summary judgment and Daubert hearings. See ECF
Nos. 494-10, 494-11. Tevra responded that Bayer was improperly seeking costs for non-taxable
intellectual effort. Objs. at 11. The Clerk allowed $413.77 in costs, disallowing other costs as
excessive.
The Court agrees with Bayer that it is entitled to costs for demonstratives that are “useful
and reasonably necessary given the complexity of the issues in this case.” Comput. Cache
Coherency Corp. v. Intel Corp., No. 05-cv-1766-RMW, 2009 WL 5114002, at *2 (N.D. Cal.
Dec. 18, 2009). The Court need not determine whether portions of the invoice describing billing
for meetings constitutes nontaxable intellectual effort because Bayer has withdrawn the $3,996.00
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billed from its request. Mot. at 12.
The Court awards $27,649.59 in costs for visual aids.
IV. ORDER
For the foregoing reasons, IT IS HEREBY ORDERED that:
(1) Bayer’s motion for review of costs is GRANTED-IN-PART and DENIED-IN-PART.
(2) Bayer’s award of costs is MODIFIED to $140,652.06.
Dated: January 15, 2026
______________________________________
BETH LABSON FREEMAN
United States District Judge
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