Dewberry Eng'rs, Inc. v. Dewberry Grp., Inc.
Dewberry Eng'rs, Inc. v. Dewberry Grp., Inc.
2022 WL 20804194 (E.D. Va. 2022)
July 29, 2022
O'Grady, Liam, United States District Judge
Summary
The court awarded $3,762,088.25 in attorneys' fees and $153,592.09 in costs to the plaintiff in a trademark litigation case. The court followed a three-step process to determine the appropriate amount of fees, considering factors such as time and labor expended, the skill required, and the results obtained. The court found the requested fees and costs to be reasonable and noted that the defendant's aggressive litigation tactics forced the plaintiff to incur many of these hours.
DEWBERRY ENGINEERS, INC., Plaintiff,
v.
DEWBERRY GROUP, INC., Defendant
v.
DEWBERRY GROUP, INC., Defendant
Civil Action No. 1:20-cv-00610
United States District Court, E.D. Virginia
Filed July 29, 2022
Counsel
Alan Bruce Croft, McCandlish & Lillard PC (Leesburg), Leesburg, VA, Arthur Eric Schmalz, Washington, DC, Brian Adam Wright, Henry Pollard Long, III, Jonathan Lee Caulder, Stephen Patrick Demm, Hunton Andrews Kurth LLP (Richmond), Richmond, VA, Julie Margaret Peters, Hunton Andrews Kurth LLP, Washington, DC, for Plaintiff.Daniel Kenneth Felsen, Washington, DC, Adriaen Meredith Morse, Jr., SECIL Law PLLC, Washington, DC, Gail Podolsky, Carlton Fields, P.A., Atlanta, GA, John P. Rowley, III, JPRowley Law PLLC, Fairfax Station, DC, for Defendant.
O'Grady, Liam, United States District Judge
ORDER
*1 This matter comes before the Court on Plaintiff Dewberry Engineers, Inc.'s Motion for Attorneys' Fees, Dkt. 272, and Motion for Its Bill of Costs, Dkt. 270. For the reasons that follow, the Court awards $3,762,088.25 in Attorneys' Fees and $153,592.09 in costs.
I. BACKGROUND
The procedural history of this case has been overviewed thoroughly in the Court's prior Orders, see, e.g., Dkt. 256 (Order Awarding Damages). It is briefly recounted again here.
In May 2020, Plaintiff sued Defendant for trademark infringement and unfair competition under the Lanham Act and Virginia Law. Dkt. 1. Plaintiff also asserted a breach of a 2007 Confidential Settlement Agreement (“CSA”) that resolved litigation between these same parties.
The Court granted summary judgment in Plaintiff's favor on all five counts of its Complaint, and denied Defendant's cross-motion. Dkt. 174. On the contract claim, the Court found that the CSA was unambiguous. Id. at 4. The Court found that Defendant had breached multiple provisions of the CSA, including: Paragraph B.6 by using “Dewberry” marks many times to promote and perform architectural-related services; Paragraph B.3 by performing real estate development-related services using a “Dewberry” mark instead of “DCC” in Virginia; Paragraph B.2 by rebranding to the Infringing Marks and using them in connection with promoting, offering, and performing real estate development services; and Paragraph B.10 by repeatedly using “Dewberry” marks without the column/capitol logo. See Dkt. 174 at 4-10.
The Court additionally found Defendant liable for infringing the Dewberry Marks, holding that “no reasonable jury could, based on the evidence presented, find that no likelihood of confusion exists between the parties.” Id. at 10–19. The Court also found that the infringement was intentional in view of the plain language of the CSA, id. at 15–16, 19, and that it harmed Plaintiff, which had invested substantially in its marks and developed positive associations for quality and expertise. Id. at 18–19.
The Court held a three-day bench trial on October 12th – 14th, 2021. The trial was limited to the sole issue of the appropriate quantum of damages to be awarded to Plaintiff. See Dkt. 175 at 1. The parties subsequently submitted Proposed Findings of Fact and Conclusions of Law. See Dkt. 238; Dkt. 239.
After considering the evidence presented at trial, the Court awarded Plaintiff $42,975,725.60 in damages. Dkt. 256. The Court further found that this was an exceptional case warranting attorneys' fees. The Court directed Plaintiff to file a motion indicating the attorneys' hours worked with particularity, the billing rates of the attorneys involved, and an affidavit of reasonableness from a Northern Virginia practitioner. Id. at 29. These filings are now before the Court.
II. LEGAL STANDARD
Parties are typically responsible for their own attorneys' fees. Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247 (1975). However, attorneys' fees may be recoverable if a statute so provides. The Lanham Act, at 15 U.S.C. § 1117(a) provides that “[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party.” This Court has previously held that this is an exceptional case warranting attorneys' fees. Dkt. 256 at 29.
*2 Where, as here, a statute provides for the recovery of attorneys' fees by the prevailing party, courts have discretion in determining the appropriate amount to be awarded, McDonnell v. Miller Oil Co., 134 F.3d 638, 640 (4th Cir. 1998), but “there must be evidence supporting the reasonableness of fees.” See United Mktg. Solutions, Inc. v. Fowler, 2011 WL 837112, at *4 (E.D. Va. Mar. 2, 2011). The party requesting attorneys' fees bears the burden of establishing the reasonableness of its fee request. Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir. 1990); Cook v. Andrews, 7 F. Supp. 2d 733, 736 (E.D. Va. 1998). Reasonableness is established “both by showing the reasonableness of the rate claimed and the number of hours spent.” Rehab. Ass'n of Va., Inc. v. Metcalf, 8 F. Supp. 2d 520, 527 (E.D. Va. 1998).
The Fourth Circuit has established a three-step process for determining the reasonableness of attorneys' fees. Smith v. Loudoun Cnty. Pub. Schs., 2017 WL 176510, at *1 (E.D. Va. Jan. 17, 2017).
First, the Court must “ ‘determine the lodestar figure by multiplying the number of reasonable hours expended [by] a reasonable rate.’ ” McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013) (quoting Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 243 (4th Cir. 2009)). In deciding what constitutes reasonable hours expended and a reasonable rate, courts are guided by the following twelve factors:
(1) the time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney's opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney's expectations at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorneys' fees awards in similar cases.
Johnson v. Georgia Highway Express Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). See also Robinson, 560 F.3d at 243-44 (citing Barber v. Kimbrell's Inc., 577 F.2d 216, 226 n.28 (4th Cir. 1978)). In determining the reasonableness of fees, courts need not address all twelve Johnson factors. See Moore v. SouthTrust Corp., 392 F. Supp. 2d 724, 733 (E.D. Va. 2005). They “only need discuss in detail ‘those factors that are relevant to its determination of the reasonable amount of attorney's fees to award in each particular case.’ ” Kennedy v. A Touch of Patience Shared Housing Inc., 779 F. Supp. 2d 516, 526 (E.D. Va. 2011); Dollar Tree Stores, Inc. v. Norcor Bolingbrook Assocs., LLC, 699 F. Supp. 2d 766, 768 (E.D. Va. 2009). For example, a court has no obligation to consider factors that are “subsumed within the initial calculation of hours expended at a reasonable hourly rate.” Freeman v. Potter, 2006 WL 2631722, at *2 (W.D. Va. Sept. 13, 2006) (citing Hensley v. Eckerhart, 461 U.S. 424, 434 n.9 (1983)); see also McAfee, 738 F.3d at 91 (observing that “[t]o the extent that any of [the Johnson factors] has already been incorporated into the lodestar analysis,” such factors are not later considered a second time to make an upward or downward adjustment to the lodestar figure because doing so would “inappropriately weigh” them).
*3 Second, after a Court determines the “lodestar figure,” it must “subtract fees for hours spent on unsuccessful claims unrelated to successful ones.” Robinson, 560 F.3d at 244 (internal quotation marks and citation omitted).
Third, the Court awards “some percentage of the remaining amount, depending on the degree of success enjoyed by the plaintiff.” Robinson, 560 F.3d at 244 (internal quotation marks and citation omitted). The Court determines this amount based on the individual facts and circumstances of each case. Carroll v. Wolpoff & Abramson, 53 F.3d 626, 628 (4th Cir. 1995).
III. DISCUSSION
In calculating the attorneys' fees owed to the Plaintiff in this case, the Court is guided by this three-step process as articulated by the Fourth Circuit.
A. Step One: Determination of the Lodestar Figure
The Court first considers the “lodestar figure” by multiplying the number of reasonable hours worked by a reasonable rate. See McAfee, 738 F.3d at 88 (4th Cir. 2013). In determining what hours and rates are “reasonable,” the Court is guided by consideration of the 12 Johnson factors. See Johnson, 488 F.2d at 717-19.
It is the fee applicant's duty to “submit evidence supporting the hours worked and rates claimed.” BMG Rights Mgmt. (US) LLC v. Cox Commc'ns, Inc., 234 F. Supp. 3d 760, 770 (E.D. Va. 2017) (quoting Hensley, 461 U.S. at 424, 433 (1983)). Such evidence typically includes attorney affidavits from counsel who worked on the case, plus “affidavits of other local lawyers who are familiar both with the skills of the fee applicants and more generally with the type of work in the relevant community.” Id. (quoting Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 245 (4th Cir. 2009) (other citations omitted). Here, the Court has received and reviewed Declarations in support of Plaintiff's Motion for Attorneys' Fees from Arthur Schmalz (Dkt. 273), Craig Reilly (Dkt. 274), Meghan Podolny (Dkt. 275) and Alan Croft (Dkt. 276).
i. Reasonable Number of Hours Worked
The fee applicant bears the burden of proof on the reasonable number of hours and must “submit evidence supporting the hours worked.” Hensley, 461 U.S. at 434. Further, “[t]he applicant... should maintain billing time records in a manner that would enable a reviewing court to identify distinct claims” for when fee-shifting might now be awarded. Id. at 437. The court is not required to make a line-item analysis. “The essential goal in shifting fees... is to do rough justice, not to achieve auditing perfection.” Fox v. Vice, 563 U.S. 826, 838 (2011).
In his Declaration, Mr. Craig Reilly overviews his calculations of the reasonable number of hours worked on this case. He divides the litigation into two phases: (1) prefiling investigation and (2) active litigation (including pleadings, motions, discovery, summary adjudication, and the damages trial). In Attachment F (McCandlish) (Dkt. 274-6) and Attachment G (Hunton) (Dkt. 274-7), Mr. Reilly summarizes these firms' respective hours worked and fees incurred. A review of these documents shows that Mr. Reilly has eliminated multiple line items from inclusion in the firms' lodestar figures; further, he notes voluntary discounts to line items throughout, which include reductions for duplicative work due to the transition of new lead counsel and other discounts. See generally Dkt. 274-6 and Dkt. 274-7. Mr. Reilly states that “[d]etermining the reasonable number of hours involves both quantitative and qualitative analyses. Quantitatively, not every hour worked counts towards the total—some are excessive... Qualitatively, not every hour that has been worked will be recovered—some hours may have been spent on an unsuccessful claim that was unrelated to the fee-shifting claim.” Dkt. 274 at 14.
*4 Upon review of Mr. Reilly's Declaration and attached documents, Dkt. 274-6 and Dkt. 274-7, the Court finds that Mr. Reilly's summation of the reasonable number of hours worked is appropriate. The number of hours recorded is not excessive, but rather necessary to Plaintiff's successful litigation of this case. The Court appreciates and agrees that it was in fact Defendant's aggressive litigation tactics that forced Plaintiff to incur many of these hours. Therefore, the Court will not make a reduction to the reasonable number of hours worked.
ii. Reasonable Hourly Rate
The hourly rates charged by the attorneys and other employees at Hunton Andrews Kurth and McCandlish Lillard are set forth in the Attorney Rate Tables accompanying Mr. Reilly's Declaration. See Dkt. 274-3; Dkt. 274-5. The top rate billed by Partners at Hunton Andrews Kurth LLP is $985 per hour. Dkt. 274-3. The top rate billed by a Partner at McCandlish Lillard is $550 per hour. Dkt. 274-5. Plaintiff claims that these rates are reasonable for three reasons: first, because these rates were agreed to and paid by Dewberry Engineers; second, because these rates are within the current prevailing market rates in Northern Virginia for complex litigation; and, third, because the complexity of this trademark litigation, coupled with its taking place in the Eastern District of Virginia – the fast-paced “Rocket Docket” – demanded premium rates by a firm capable of performing excellent legal work in a short timeframe. See Dkt. 277 at 11-15.
In Mr. Reilly's Declaration in support of Plaintiff's Motion for Attorneys' Fees, Mr. Reilly states that the most comparable case to this one by way of hourly rates is BMG Rights Mgmt. (US) LLC v. Cox Commc'ns, Inc., 234 F. Supp. 3d 760, 770 (E.D. Va. 2017). This case, in turn, relied upon the Vienna Metro Matrix rates. See Vienna Metro LLC v. Pulte Home Corp., No. 1:10–cv–502, Dkt. 263 (E.D. Va. Aug. 24, 2011); Dkt. 274 at 10. Mr. Reilly states that the BMG case was another “big case” litigated between two “big firms.” Dkt. 274-2. In that case, the Court awarded a total of approximately $8.4 million in fees. The top individual billing rate was $821.75 per hour. See BMG, 234 F. Supp. 3d at 778. The Vienna Metro matrix, which was compiled by Mr. Reilly himself, has also been applied in numerous other cases. Dkt. 274-2 at 2. The Vienna Metro Matrix indicates that a reasonable hourly rate for an attorney with 20+ years of experience conducting complex litigation in the Northern Virginia area is $505 to $820 per hour. See Dkt. 277 at 12.
Defendant counters that the Hunton hourly rates are unreasonable and should be reduced. Defendant argues, inter alia, that even accepting the Vienna Metro Matrix as the starting point for assessing reasonableness, the hourly rates charged by Hunton's two lead partners - who each charge $985 per hour - exceed Vienna Metro Matrix's top billing rate of $820 per hour by $165 per hour. Defendant further notes that the hourly rates charged by Mr. Reilly and the McCandlish attorneys demonstrate that the Hunton hourly rates are excessive. See Dkt. 283 at 2-5.
In turning to the 12 Johnson factors, the Court agrees with Defendant that the Hunton hourly rates are excessive given the nature of this case. The Court acknowledges that the time and labor expended by Plaintiff's attorneys on this case was substantial – and appreciates that much of the time pressure and excessive litigation was in response to litigation strategies by Defendant. Still, the legal questions raised were relatively straightforward – not novel or difficult. See Johnson, 488 F.2d at 717-19.
*5 In BMG, the holder of more than 1,400 musical composition copyrights, and a provider of services related to copyrights, brought an action against Cox Communications, an Internet service provider (ISP), seeking to hold Cox contributorily and vicariously liable for alleged copyright infringement. After a two-week jury trial involving complex intellectual property litigation regarding software copyright infringement, the jury awarded the Plaintiffs $25 million in damages. By contrast, in the present case, the nature of the legal and factual issues were far more straightforward, and the three-day bench trial was certainly less onerous than a two-week jury trial.
The Court finds that more comparable cases as to reasonable hourly rates include Innovation Services, LLC v. Amazon.com, Inc., 2020 WL 4934272 (E.D. Va. Feb. 18, 2020), Page v. Virginia Board of Elections, 2015 WL 11256614 (E.D. Va. March 11, 2015), and Harwood III v. American Airlines, Inc., 37 F.4th 954 (4th Cir. 2022). In Innovation Services, a case in which Plaintiff asserted 10 patents, the top billing rate sought was $774.11 to $929.60 per hour. After considering the Vienna Metro matrix and the Johnson factors, the Court noted that “although this was not a simple case, it was not particularly complex... [and] the questions in this case were not novel.” Innovation Services, LLC, 2020 WL 4934272 at *5. The Court therefore reduced the hourly rate for the prevailing attorneys. The top hourly rate received was $540 per hour – a nearly 40% reduction from the top rate requested. Id. at *6.
Similarly, in Page, a case in which Plaintiffs asserted that Virginia violated the Voting Rights Act by “packing” African-American voters into a particular Congressional district to reduce their influence in other districts, the top billing rate sought was $510 to $700 per hour. See Page, 2015 WL 11256614 at *5. After considering the record and other comparable hourly rates, the Court found that an hourly rate of $575 for senior partners was appropriate. Id. at *7-8. This was a nearly 20% reduction from the top rate requested.
Finally, in Harwood, a case in which Plaintiff brought an action alleging that Defendant American Airlines violated the Uniformed Services Employment and Reemployment Rights Act (USERRA) by delaying his reemployment and denying him a pilot position after a qualifying period of military leave, this Court held that a reasonable hourly rate for principals and of counsel was $450 per hour. This was an approximately 20% reduction from Plaintiff's requested rate of $563 per hour. This Court found that a reduction was justified because the case was not particularly complex. The Fourth Circuit upheld this Court's attorneys' fees award, finding that this Court did not abuse its discretion in its award of attorneys' fees despite Plaintiff's contention that the Court should have increased his counsel's hourly rate. Harwood, 37 F.4th at 960. In so holding, the Fourth Circuit found, upon its “extremely deferential review,” that this Court properly calculated the lodestar, appropriately considered relevant factors, and then properly reduced the fee award as needed. Id. The Fourth Circuit then affirmed that trial courts may make across-the-board reductions, and need not make targeted reductions to directly address specific issues. Finally, the Fourth Circuit noted that “[a]lthough the higher amount [Plaintiff] initially requested was within the applicable matrix for the Vienna, Virginia, metro area, district courts are not required to follow any particular fee matrix.” Id. at 961.
Applying these same principles to this present case, this Court finds that a reduction to the hourly rates requested by the Hunton attorneys is appropriate. This case was relatively straightforward and did not present novel legal questions nor complex factual issues. Moreover, the Court finds that bringing the rates of the Hunton attorneys more in line with the rates of the McCandlish attorneys is appropriate. Although the Court appreciates that Hunton joined the case as lead counsel because McCandlish was not well-equipped to handle the compressed litigation time frame, the Court nevertheless finds that the rates in this case should be more comparable.
*6 Therefore, the Court will reduce the rates charged by the Hunton attorneys and various timekeepers by 35% across the board. The top Hunton billing rate received will be reduced to $650 per hour, rather than the $985 per hour rate requested. The other billing rates will be commensurately reduced. Therefore, the Hunton lodestar will reduced to $3,464,126.25, rather than the $5,329,425.00 requested. The Court will leave the McCandlish rates and lodestar of $258,962.00 intact, finding them reasonable for the work performed by that firm.
In conclusion, given the reasonable number of hours worked and the reasonable hourly rates for both Hunton and McCandlish, the Court finds that a total lodestar figure of $3,723,088.25 is appropriate.
Additionally, the Court agrees with Mr. Reilly's analysis that a total of $39,000.00 is an appropriate fee for this attorneys' fees application. This constitutes a blended hourly rate of $650 as applied to 60 hours worked. See Dkt. 274 at 50.
Therefore, at this step of the analysis, the Court awards Plaintiff a total of $3,762,088.25.
B. Step Two: Subtraction of Fees for Unsuccessful Claims
The Court will briefly address the second step of the Fourth Circuit's analysis. The Fourth Circuit instructs that after a Court determines the “lodestar figure,” it must “subtract fees for hours spent on unsuccessful claims unrelated to successful ones.” Robinson, 560 F.3d at 244 (internal quotation marks and citation omitted).
Plaintiff states – and the Court agrees – that Plaintiff's claims were entirely successful. Indeed, Plaintiff prevailed on each of its claims, defeated Defendant's counterclaims, and won both the permanent injunction and monetary relief it sought. See Dkt. 277 at 23.
The singular setback to Plaintiff during this litigation was when the Court denied Plaintiff's request for leave to file a motion for partial summary judgment as premature. See Dkt. 60. Defendant argues that the Court must discount Plaintiff's expenditures on this early motion. Dkt. 283 at 16. However, as Plaintiff notes, that motion was filed to oppose Defendant's eighth affirmative defense (that Defendant was actually the “senior user” of the mark in question). This is an argument that Plaintiff prevailed upon later in the case. Therefore, this is not an “unsuccessful claim unrelated to successful ones.” See Robinson, 560 F.3d at 244. Quite the opposite: it was a claim related to a successful one. Therefore, the Court declines to reduce Plaintiff's fee awards at this stage of the analysis.
C. Step Three: Award Some Percentage of Remaining Amount
The third step of the Fourth Circuit's process for determining the reasonableness of attorneys' fees instructs the Court to award “some percentage of the remaining amount, depending on the degree of success enjoyed by the plaintiff.” Robinson, 560 F.3d at 244 (internal quotation marks and citation omitted). The Court determines this amount based on the individual facts and circumstances of each case. Carroll v. Wolpoff & Abramson, 53 F.3d 626, 628 (4th Cir. 1995). Where “a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee.” BMG, 234 F. Supp. 3d at 776 (quoting Hensley, 461 U.S. at 435).
Again, as stated above, Plaintiff unequivocally prevailed in this case. Plaintiff prevailed on each of its claims, defeated Defendant's counterclaims, and won both the permanent injunction and monetary relief it sought. See Dkt. 277 at 23. Plaintiff was awarded more than $42 million in damages, as well as attorneys' fees. Plaintiff has indeed obtained “excellent results.” Therefore, the Court declines to reduce Plaintiff's fee awards at this stage of the analysis.
D. Plaintiff's Bill of Costs
*7 In addition to the Motion for Attorneys' Fees, Plaintiff has also brought a Motion for Its Bill of Costs, Dkt. 270, pursuant to 28 U.S.C. §§ 1920, 1924, Rule 54(d) of the Federal Rules of Civil Procedure, Local Civil Rule 54(D), and this Court's Taxation of Costs Guidelines. In support of this Motion, Plaintiff has filed a Completed Bill of Costs Form AO 133 with attached Itemization and Documentation, as well as the Declarations of Mr. Arthur E. Schmalz and Meghan A. Podolny.
Plaintiff seeks the following costs: $595.00 in fees paid to the clerk; $1,735.65 in fees paid to the court reporter for transcripts; $207.36 in witness fees; $42,673.93 in fees for exemplification and copying of papers necessarily obtained for use in the case, including certain ESI costs; $40.00 in docket fees; and $108,340.15 transcript and video costs incurred for deposition. Plaintiff therefore seeks a total of $153,592.09 in taxable costs.
Defendant disputes two items on Plaintiff's Bill of Costs: first, Defendant disputes the fees associated with Plaintiff's third-party trial presentation consultant; and, second, Defendant disputes the transcript and video costs incurred – namely, the costs associated with Plaintiff's ordering Realtime Transcription, expedited rough transcripts, using a third party to display exhibits on screen, ordering the court reporter's “exhibit package,” videography, and premium videography services with for depositions taken in the case. In total, Defendant disputes $90,995.85 in costs. Dkt. 284 at 1-2.
In disputing the fees associated with Plaintiff's third-party trial presentation consultant, Defendant argues, first, that using a vendor to prepare demonstrative exhibits and assist in exhibit presentation is not taxable. See Dkt. 284 at 2. Defendant further argues that even if such fees were taxable, the costs for a consultant were duplicative and excessive, and that Plaintiff should have “simply referenced the paper exhibits before the Court or used its paralegal, or even one of its associates attending trial, to run the trial exhibits...” Id. at 4.
The Court disagrees. First, according to 28 U.S.C. § 1920 and this Court's Cost Guidelines, taxable costs include “[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case...” Many courts, including this one, have held that making trial exhibits accessible to the bench or to a jury are taxable as necessary exemplification costs. See, e.g., Bd. of Directors, Water's Edge v. Anden Grp., 135 F.R.D. 129, 137 (E.D. Va. 1991) (taxing costs of reproductions of videotape and photographs showing construction defects). Moreover, the Court finds that these costs were neither duplicative nor excessive. Instead, these were standard and necessary trial presentation costs incurred to present exhibits effectively and efficiently. The efficient presentation undoubtedly cut down on trial time, saving all parties further litigation expenses. The Court therefore finds that the fees associated with Plaintiff's third-party trial presentation consultant are appropriately included in Plaintiff's Bill of Costs.
In disputing the fees associated with the transcripts and videos, Defendant argues that Plaintiff included numerous “luxury and unnecessary costs.” Dkt. 284 at 5. While Defendant concedes that certain deposition costs are ordinarily recoverable, including stenographic transcript services and ordinary delivery and handling for the transcript, Defendant takes issue with numerous additional costs, including videography, professional attendance for a Veritext employee, and expedited rough drafts of the transcripts. See id.
*8 The Court finds that such costs were not luxurious or unnecessary, but rather justifiably incurred in Plaintiff's presentation of its case. As a matter of safety during the ongoing COVID-19 pandemic, counsel for Plaintiff and Defendant agreed to conduct all of the depositions in the case virtually by using Veritix, a court reporting services firm experienced in managing virtual depositions. See Dkt. 273 at 43 (Schmalz Declaration); Dkt. 293 at 6. What's more, Defendant specifically agreed – and confirmed in writing – that Veritext would provide (i) court reporting services, (ii) videography services, and (iii) a “hot seat” operator. See Dkt. 293 at 6-7. To argue the opposite now is disingenuous. Further, Plaintiff argues convincingly that Realtime services were necessary for virtual depositions, as this permitted deposing and defending attorneys to have a clear record of what the court reporter transcribed. It also allowed other attorneys for Plaintiff to assist with depositions, including catching up on poritions missed due to concurrent obligations in the case. The Court finds – especially in light of the ongoing COVID-19 pandemic, that these costs taken in the course of depositions were reasonably incurred and are appropriate to be included in Plaintiff's Bill of Costs.
Therefore, the Court finds that the total amount of $153,592.09 in taxable costs that Plaintiff seeks is appropriate in this case.
IV. CONCLUSION
For the foregoing reasons, in light of Plaintiff's Motion for Attorneys' Fees, Dkt. 272, and Motion for Its Bill of Costs, Dkt. 270, the Court awards to the Plaintiff $3,762,088.25 in Attorneys' Fees and $153,592.09 in costs.
It is SO ORDERED.
Alexandria, Virginia