Here's the filing:
09/07/2010 - 891 - RESPONSE re 890 Objections, to Bill of Costs filed by Counter Claimant Novell, Inc., Defendant Novell, Inc.. (Brennan, Sterling) (Entered: 09/07/2010)
Novell has also withdrawn its request for $21,036 in mock trial graphics costs "but respectfully requests that the Court reject the remainder of SCO's challenges to Novell's request for costs."
But it points out to the court another slippery move by SCO:
1. Trial technician fees. SCO challenges Novell's request for trial presenter fees and graphics presentation costs, arguing that these costs are not authorized by the statute, were not reasonably necessary, are unreasonably high, and were not approved by the Court before being incurred. (Objections to Bill of Costs at 3.)
As a preliminary matter, SCO misleadingly merges trial presenter fees and graphics fees into a heading of its own creation, "Professional Services Costs," so that its citation of Pehr v. Rubbermaid, Inc., 196 F.R.D. 404, 408 (D. Kansas), addressing "professional services rendered," appears on-point. (Id.) But, Pehr involved an attempt to recover costs for prior art searches. The costs that are at issue here are properly classified as exemplification services, which are explicitly authorized by statute and interpreting case law as recoverable. See 28 U.S.C. Section 1920(4) (allowing recovery of costs for exemplification); Battenfeld of Am. Holding Co. v. Baird, Kurtz & Dobson, 196 F.R.D. 613, 616 n.4 (D. Kan. 2000) ("'Exemplification' has been interpreted to embrace all manner of demonstrative exhibits, including ... graphic aids.").
Both parties used trial technicians in this case (SCO, a Mr. Michael Calvin; and Novell, a Mr. Thomas Lee), making it odd and surprising for SCO to protest that such services are unnecessary. In a complicated case such as this one, with 11 witnesses presented via deposition testimony and roughly 170 exhibits introduced to the jury, a trial presenter or trial technician is particularly necessary to efficiently present the voluminous information to the jury..."
I am very glad to see Novell spelling out each and every underhanded trick, frankly, so there is a public record of how Boies Schiller has represented SCO. Sterling Brennan for Novell doesn't mind a bit taking the time to check the case law, so he catches them all, and Boies Schiller's style really does depend on the other side not bothering. Mr. Brennan bothers. Some lawyers are really good at details, and some are good at taking complex facts and telling them as a simple story, and Mr. Brennan is exceptional at both. No doubt that is part of why Novell prevailed, the other part being that Novell deserved to win.
Do you remember SCO objected to the copying costs too? Novell answers:
Novell's Bill of Costs indicates that the documents at issue were copied and bound for use at trial. As the Court is aware, this case has been pending for more than six years and the litigation has generated a large amount of documents. With only a single exception, all of the copies for which Novell seeks recovery were made during the two weeks preceding the trial or during the trial itself. Thus, these copies were made as the parties were heavily involved in final trial preparation and trial.
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