Silicon Knights, Inc. v. Epic Games, Inc.

ORDER

On May 30, 2012, after an eleven-day trial and one day of deliberations, a jury returned a verdict against Silicon Knights, Inc. (“Silicon Knights” or “plaintiff’) [D.E. 802], The jury found that Silicon Knights failed to prove its breach of contract claim, and that Epic Games, Inc. (“Epic Games” or “defendant”) had proven its breach of contract, copyright infringement, and trade secret misappropriation counterclaims. Id. 1-3. The jury awarded Epic Games $2,650,000.00 for its breach of contract counterclaim, and $1,800,000.00 for *508its copyright infringement and trade secret misappropriation counterclaims. Id. 2-3. On May 30, 2012, the court entered a judgment reflecting the jury’s verdict [D.E. 804]. Thereafter, in accordance with a schedule that this court set, Silicon Knights and Epic Games filed numerous post-trial motions.

On June 13, 2012, Silicon Knights moved to stay execution and enforcement of the judgment. See Pl.’s Mot. Stay [D.E. 808]. On June 20, 2012, Epic Games responded in opposition. See Def.’s Mem. Opp’n Mot. Stay [D.E. 811]. On July 6, 2012, Silicon Knights replied. See PL’s Reply Mot. Stay [D.E. 827].

On July 2, 2012, Epic Games moved for costs. See Def.’s Mot. Costs [D.E. 813]. On August 1, 2012, Silicon Knights moved to disallow Epic Games’s costs, see Pl.’s Mot. Disallow Costs [D.E. 838], and filed a supporting memorandum. See Pl.’s Mem. Supp. Mot. Disallow Costs [D.E. 839]. On August 16, 2012, Epic Games replied. See Def.’s Reply Mot. Costs [D.E. 842].

On July 2, 2012, Epic Games moved for an award of attorney’s fees, see Def.’s Mot. Attorney’s Fees [D.E. 814], and filed a supporting memorandum. See Def.’s Mem. Supp. Mot. Attorney’s Fees [D.E. 815], On August 1, 2012, Silicon Knights responded in opposition. See Pl.’s Mem. Opp’n Mot. Attorney’s Fees [D.E. 837]. On August 16, 2012, Epic Games replied. See Def.’s Reply Mot. Attorney’s Fees [D.E. 843],

On July 2, 2012, Epic Games moved to amend the judgment, see Def.’s Mot. Amend J. [D.E. 816], and filed a supporting memorandum. See Def.’s Mem. Supp. Mot. Amend J. [D.E. 817]. On August 1, 2012, Silicon Knights responded in opposition. See PL’s Mem. Opp’n Mot. Amend J. [D.E. 835]. On August 16, 2012, Epic Games replied. See Def.’s Reply Mot. Amend J. [D.E. 841].

On July 2, 2012, Silicon Knights moved to alter the judgment by remittitur, see PL’s Mot. Remittitur [D.E. 818], and filed a supporting memorandum. See Pl.’s Mem. Supp. Mot. Remittitur [D.E. 819]. On August 1, 2012, Epic Games responded in opposition. See Def.’s Mem. Opp’n Mot. Remittitur [D.E. 830]. On August 16, 2012, Silicon Knights replied. See Pl.’s Reply Mot. Remittitur [D.E. 845].

On July 2, 2012, Epic Games moved for a permanent injunction, see Def.’s Mot. Inj. [D.E. 820], filed a supporting memorandum, see Def.’s Mem. Supp. Mot. Inj. [D.E. 821], filed a proposed sealed exhibit in support of its motion for a permanent injunction [D.E. 822], and moved to seal the proposed sealed exhibit [D.E. 823]. On August 1, 2012, Silicon Knights responded in opposition. See PL’s Mem. Opp’n Mot. Inj. [D.E. 836]. On August 16, 2012, Epic Games replied. See Def.’s Reply Mot. Inj. [D.E. 844].

On July 2, 2012, Silicon Knights moved for judgment as a matter of law, see Pl.’s Mot. J. as Matter of Law [D.E. 824], and filed a supporting memorandum. See Pl.’s Mem. Supp. Mot. J. as Matter of Law [D.E. 825]. On August 1, 2012, Epic Games responded in opposition, see Def.’s Mem. Opp’n Mot. J. as Matter of Law [D.E. 831], and moved to seal the response and first two attached exhibits [D.E. 833]. On August 16, 2012, Silicon Knights replied. See Pl.’s Reply Mot. J. as Matter of Law [D.E. 846].

On July 25, 2012, Epic Games moved to compel complete responses to its post-judgment interrogatories and requests for production, see Def.’s Mot. Compel [D.E. 828], and filed a supporting memorandum. See Def.’s Mem. Supp. Mot. Compel [D.E. 829]. On August 8, 2012, Silicon Knights responded in opposition. See Pl.’s Mem. Opp’n Mot. Compel [D.E. 840].

*509As explained below, the court denies as moot Silicon Knights’s motion to stay, grants in part and denies in part Epic Games’s motion for costs, grants in part and denies in part Silicon Knights’s motion to disallow costs, grants in part and denies in part Epic Games’s motion for attorney’s fees and expert witness fees, grants in part and denies in part Epic Games’s motion to amend the judgment, denies Silicon Knights’s motion to alter the judgment by remittitur, grants in part and denies in part Epic Games’s motion for a permanent injunction, grants Epic Games’s motion to seal the exhibit filed in support of its motion for a permanent injunction, denies Silicon Knights’s motion for judgment as a matter of law, grants Epic Games’s motion to seal its response to Silicon Knights’s motion for judgment as a matter of law and the first two exhibits attached to that response, and grants Epic Games’s motion to compel.

I.

Silicon Knights asks the court to stay the execution and enforcement of the judgment until the parties have submitted, and the court has considered, all post-trial motions. See Pl.’s Mot. Stay 2-3. The deadline for submitting post-trial motions, responses, and replies has passed. See [D.E. 806, 810]. All post-trial motions and the parties’ arguments supporting and opposing those motions are ripe, and this order resolves the pending motions. Thus, the court denies as moot Silicon Knights’s motion to stay.

II.

As for Epic Games’s motion for costs, Epic Games seeks an award of $280,910.24. See Def.’s Mot. Costs 1. Federal Rule of Civil Procedure 54(d)(1) governs a post-judgment motion for an award of costs. See Fed.R.Civ.P. 54(d)(1). Rule 54(d)(1) provides that “costs — other than attorney’s fees — should be allowed to the prevailing party.” Id. A “prevailing party” is “a party in whose favor a judgment is rendered” or “one who has been awarded some relief by the court.” Buckhannon Bd. & Care Home, Inc. v. W.Va. Dep’t of Health & Human Res., 532 U.S. 598, 603, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (quotation and alteration omitted). “[T]he rule gives a presumption in favor of an award of costs to the prevailing party.” Teague v. Bakker, 35 F.3d 978, 996 (4th Cir.1994); see Delta Air Lines, Inc. v. August, 450 U.S. 346, 352, 101 S.Ct. 1146, 67 L.Ed.2d 287 (1981). However, a district court has discretion to award or deny costs to the prevailing party. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987), superseded on other grounds by statute, 42 U.S.C. § 1988; Couram v. S.C. Dep’t of Motor Vehicles, Civil Action No. 3:10-00001-MBS, 2011 WL 6115509 at *2 (D.S.C. Dec. 8, 2011) (unpublished). A court “must justify its decision to deny costs by articulating some good reason for doing so.” Cherry v. Champion Int'l Corp., 186 F.3d 442, 446 (4th Cir.1999) (quotation and citations omitted); see Teague, 35 F.3d at 996. A losing party’s good faith is insufficient, standing alone, to justify denying costs to a prevailing party. Cherry, 186 F.3d at 446. Instead, a losing party’s good faith is a “virtual prerequisite” to a denial of costs in favor of the prevailing party. Id. Upon a finding of the losing party’s good faith, the court may deny an award of costs when “there would be an element of injustice in a presumptive cost award.” Id.; see Delta Air Lines, 450 U.S. at 355 n. 14, 101 S.Ct. 1146. The factors that a court should consider to determine whether such an element of injustice would arise from an award of costs are: “(1) misconduct by the prevailing party; (2) the unsuccessful par*510ty’s inability to pay the costs; (3) the excessiveness of the costs in a particular case; (4) the limited value of the prevailing party’s victory; or (5) the closeness and difficulty of the issues decided.” Ellis v. Grant Thornton LLP, 434 Fed.Appx. 232, 235 (4th Cir.2011) (per curiam) (unpublished); see Cherry, 186 F.3d at 446-47.

When an award of costs to the prevailing party is appropriate, the court looks to federal law to determine the scope of the award. See Crawford Fitting, 482 U.S. at 441-43, 107 S.Ct. 2494. Section 1920 of Title 28 of the United States Code lists taxable costs. 28 U.S.C. § 1920; see Crawford Fitting, 482 U.S. at 441, 107 S.Ct. 2494 (“[Section] 1920 defines the term ‘costs’ as used in Rule 54(d).”).1 Section 1920’s list of recoverable costs is exhaustive as to “expenses that a federal court may tax under the discretionary authority found in Rule 54(d).” Crawford Fitting, 482 U.S. at 441-42, 107 S.Ct. 2494. Accordingly, “Rule 54(d) does not provide authority to tax as costs those expenses not enumerated in [section] 1920.” Herold v. Hajoca Corp., 864 F.2d 317, 323 (4th Cir.1988); see Crawford Fitting, 482 U.S. at 441—42, 107 S.Ct. 2494.

A court’s local rules also may impact a party’s ability to recover costs. Pursuant to Federal Rule of Civil Procedure 83, “a district court ... may adopt and amend rules governing its practice.” See Fed.R.Civ.P. 83(a)(1). Local rules promulgated pursuant to Rule 83 “have the force and effect of law, and are binding upon the parties and the court which promulgated them.” Jackson v. Beard, 828 F.2d 1077, 1078 (4th Cir.1987) (quotation omitted). District courts have “broad discretion to interpret their local rules [and] [o]nly in rare cases will [appellate courts] question the exercise of discretion in connection with the application of ... local rules.” Qualls v. Blue Cross of Cal., Inc., 22 F.3d 839, 842 n. 2 (9th Cir.1994) (quotations and citations omitted); see AM Props. v. Town of Chapel Hill, 202 F.Supp.2d 451, 453-54 (M.D.N.C.2002). District courts routinely apply local rules regulating the nature of recoverable costs. See, e.g., Couram, 2011 WL 6115509, at *1; Bland v. Fairfax Cnty., No. 1:10-CV-1030, 2011 WL 5330782, at *5 (E.D.Va. Nov. 7, 2011) (unpublished). This court has promulgated a local rule governing the recovery of costs. See Local Civil Rule 54.1.2 *511Accordingly, this local rule further refines the scope of recoverable costs.

Silicon Knights concedes that Epic Games was the prevailing party and may recover costs. See Pl.’s Mot. Disallow Costs 1-2; Pl.’s Mem. Supp. Mot. Disallow Costs 26; see also [D.E. 802, 804]. Nonetheless, Silicon Knights challenges three specific categories of costs, which it claims Epic Games may not recover. The court examines each category seriatim.

First, Silicon Knights argues that Epic Games may not recover the $33,749.04 that Epic Games seeks for audiovisual recordings Epic Games made of depositions taken in this case. Pl.’s Mem. Supp. Mot. Disallow Costs 2-3; see [D.E. 813-2] 24. Silicon Knights asserts that the depositions were recorded by both audiovisual and stenographic means, that the audiovisual recordings were not necessary to preserve testimony for or present testimony at trial, and therefore that Epic Games may recover its costs for the stenographic transcription only. PL’s Mem. Supp. Mot. Disallow Costs 2-3.3

Section 1920(2) permits a party to recover costs for videotaping a deposition and costs for transcribing a videotaped deposition. See Cherry, 186 F.3d at 448-49. Typically, a party may not recover costs for both unless the party proves that both audiovisual and stenographic recordings were necessary. Id. at 449; see Local Civil Rule 54.1(c)(2)(b). However, “when a party notices a deposition to be recorded by nonstenographic means, or by both stenographic and nonstenographic means, and no objection is raised at that time by the other party to the method of recording] pursuant to Federal Rule of Civil Procedure 26(c), it is appropriate under [section] 1920 to award the cost of conducting the deposition in the manner noticed.” Morrison v. Reichhold Chems., Inc., 97 F.3d 460, 465 (11th Cir.1996) (per curiam) (footnote omitted); accord Cherry, 186 F.3d at 449; Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471, 1477 (10th Cir.1997). Here, Epic Games provided Silicon Knights notice that the depositions would be recorded by both audiovisual videotaping and stenographic transcription. See, e.g., [D.E. 842-1] ¶ 4; cf. [D.E. 813-2] 24. Silicon Knights did not object. See [D.E. 842-1] ¶ 4. Moreover, the court finds that transcribing and videotaping the depositions were “necessarily obtained for use in the case.” 28 U.S.C. § 1920(2). Thus, pursuant to section 1920, the court awards Epic Games the $33,749.04 it paid to record the depositions by audiovisual videotaping, as well as the $55,411.41 Epic Games paid to record the depositions by stenographic means. See Tilton, 115 F.3d at 1477; Morrison, 97 F.3d at 464-65; see also [D.E. 813-2] 2-4.

Second, Silicon Knights argues that Local Civil Rule 54.1(c)(2)(a) prohibits Epic *512Games from recovering the $44.44 in witness fees, subsistence costs, and mileage costs Epic Games paid to witness Zachary Bishop, the $45.00 in witness fees, subsistence costs, and mileage costs Epic Games paid to witness Nick Penwarden, and the $138.00 Epic Games paid to subpoena witness Nick Penwarden. Pl.’s Mem. Supp. Mot. Disallow Costs 34; see [D.E. 813-1] 1; [D.E. 813-4] 1. Local Civil Rule 54.1(c)(2)(a) precludes recovery of costs for “witness fees, subsistence, and mileage for individual parties, real parties in interest, parties suing in representative capacities, and the officers and directors of corporate parties.” Local Civil Rule 54.1(c)(2)(a). Zachary Bishop is an attorney formerly employed by Hunton & Williams LLP in Raleigh, North Carolina, and currently employed by Wyrick Robbins Yates & Ponton LLP in Raleigh, North Carolina. Bishop Tr. May 24, 2012 AM [D.E. 858] at 76. Nick Penwarden is a graphics programmer who has been employed by Epic Games for approximately one year. Pen-warden Tr. May 24, 2012 AM [D.E. 858] at 110. Zachary Bishop and Nick Penwarden testified at trial and do not fall into any of the categories for which Local Civil Rule 54.1(c)(2)(a) prohibits recovery of witness fees, subsistence costs, and mileage costs. Likewise, the $138.00 paid to subpoena Nick Penwarden is recoverable. See 28 U.S.C. § 1920(3). Accordingly, Epic Games may recover these costs.

Third, Silicon Knights argues that Epic Games is not entitled to recover certain costs for imaging electronic information produced in discovery in this case, or certain costs for creating four demonstrative exhibits used during Epic Games’s closing argument. Pl.’s Mem. Supp. Mot. Disallow Costs 4-5. As for the costs associated with imaging electronic information for document production in this ease, Epic Games seeks to recover $150,687.00 for imaging electronic information, plus an additional $2,152.34 for purchasing hard drives as part of that production process. See [D.E. 813-5] 1. In opposition, Silicon Knights asserts that such costs are not recoverable under section 1920(4). PL’s Mem. Supp. Mot. Disallow Costs 4-5. Alternatively, Silicon Knights argues that the costs are not properly documented. Id.

A prevailing party may recover “[f]ees for exemplification and the costs of making copies of any materials when the copies are necessarily obtained for use in the case.” 28 U.S.C. § 1920(4). Courts of appeals have held that certain costs for imaging electronic information for production in discovery can be recoverable under section 1920(4). See Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158, 16768, 171 (3d Cir.), cert. denied, — U.S. -, 133 S.Ct. 233, 184 L.Ed.2d 43 (2012); In re Ricoh Co., Ltd. Patent Litig., 661 F.3d 1361, 1365 (Fed.Cir.2011); Hecker v. Deere & Co., 556 F.3d 575, 591 (7th Cir.2009); BDT Prods., Inc. v. Lexmark Int'l, Inc., 405 F.3d 415, 420 (6th Cir.2005), abrogated on other grounds by Taniguchi v. Kan Pac. Saipan, Ltd., - U.S. -, 132 S.Ct. 1997, 182 L.Ed.2d 903 (2012). The Fourth Circuit has not considered whether costs of imaging electronic information for production in discovery can be recoverable under section 1920(4). However, district courts within the Fourth Circuit generally have held that a party may recover such costs where the record shows that the costs are the “costs of making copies” for production in discovery. See Farrar & Farrar Dairy, Inc. v. Miller-St. Nazianz, Inc., No. 5:06-CV-160-D, 2012 WL 776945, at *4-5 (E.D.N.C. Mar. 8, 2012) (unpublished); Mann v. Heckler & Koch Def., Inc., No. 1:08cv611 (JCC), 2011 WL 1599580, at *8 (E.D.Va. Apr. 28, 2011) (unpublished); Francisco v. Verizon S., Inc., 272 F.R.D. 436, 445-46 (E.D.Va.2011). Furthermore, district courts outside the *513Fourth Circuit also have permitted a prevailing party to recover such costs under section 1920(4). See, e.g., Paradigm Alliance, Inc. v. Celeritas Techs., LLC, No. 07-1121-EFM, 2011 WL 3849724, at *1 (D.Kan. Aug. 30, 2011) (unpublished); Cargill, Inc. v. Progressive Dairy Solutions, Inc., No. CV-F-07-0349-LJO-SMS, 2008 WL 5135826, at *6 (E.D.Cal. Dec. 8, 2008) (unpublished).

Here, discovery was unusually extensive and Epic Games incurred $150,687.00 in costs in imaging electronic information for document production. See [D.E. 813-5] 1. The court finds that those costs fall within “the costs of making copies of any materials” and were “necessarily obtained for use in the case.” 28 U.S.C. § 1920(4).4 Thus, if properly documented, Epic Games can recover them. See 28 U.S.C. § 1920(4); Race Tires Am., Inc., 674 F.3d at 171; In re Ricoh Co., 661 F.3d at 1365; Hecker, 556 F.3d at 591.

“[N]o litigation costs should be awarded in the absence of adequate documentation .... ” Trimper v. City of Norfolk, 58 F.3d 68, 77 (4th Cir.1995). Here, Epic Games has provided adequate documentation to support its request for $150,687.00 in costs associated with imaging electronic information for document production. See [D.E. 813-5]. However, the court declines to award Epic Games the additional $2,152.34 in costs it incurred to purchase hard drives for document production. See [D.E. 813-5] 1. The hard drives are reusable. Such costs are properly considered overhead and are not recoverable. Accordingly, the court awards Epic Games $150,687.00 in costs associated with imaging electronic information produced in discovery. See 28 U.S.C. § 1920(4).

As for the costs associated with producing four demonstrative exhibits Epic Games used in its closing argument, Epic Games seeks $1,050.42 it paid to create a timeline spanning two large, dry-erase boards (“timeline demonstratives”), one enlarged copy of defendant’s exhibit 2383A, and one enlarged copy of defendant’s exhibit 2389B. See [D.E. 813-5] 1; Def.’s Reply Mot. Costs 6. Silicon Knights argues that Epic Games cannot recover these costs. First, Silicon Knights argues that Epic Games has not identified the specific exhibits created and has not indicated whether the exhibits were actually used at trial. Pl.’s Mem. Supp. Mot. Disallow Costs 5. This argument fails. Epic Games’s bill of costs indicates that the four demonstrative exhibits created were “36x48 Dry Erase Demonstrative [Exhibits] for Closing.” [D.E. 813-5] 1. Only four such demonstrative exhibits were used during the closing argument — two timeline demonstratives, one enlarged copy of defendant’s exhibit 2383A, and one enlarged copy of defendant’s exhibit 2389B.

*514Second, Silicon Knights argues that Epic Games has not demonstrated that the four demonstrative exhibits were necessary. Pl.’s Mem. Supp. Mot. Disallow Costs 5. A party may recover costs for creating demonstrative exhibits used in the party’s closing argument if the exhibits were “necessarily obtained for use in the case.” 28 U.S.C. § 1920(4); see Cefalu v. Vill. of Elk Grove, 211 F.3d 416, 427-28 (7th Cir.2000); Olivarius v. Tharaldson Prop. Mgmt. Inc., No. 08 C 463, 2012 WL 1117468, at *5 (N.D.Ill. Apr. 3, 2012) (unpublished). When considering whether a demonstrative exhibit was “necessarily obtained for use in the case,” 28 U.S.C. § 1920(4), courts must determine whether “the exemplification [was] vital to the presentation of the information, or [whether it] was ... merely a convenience or, worse, an extravagance.” Cefalu, 211 F.3d at 428-29; see Irwin Indus. Tool Co. v. Worthington Cylinders Wisc., LLC, Civil No. 3:08cv291, 2010 WL 3895701, at *4 (W.D.N.C. Oct. 1, 2010) (unpublished) (collecting cases). To do so, courts may consider “whether the nature and context of the information being presented genuinely called for the means of illustration that the party employed.” Cefalu, 211 F.3d at 428.

Here, both timeline demonstratives were “necessarily obtained for use in the case.” 28 U.S.C. § 1920(4). Epic Games (through counsel) used the timeline demonstratives to illustrate for the jury the sequence of events referenced in Epic Games’s closing argument regarding Silicon Knights’s breach of contract claim and Epic Games’s breach of contract counterclaim. See Epic Games Closing Tr. May 29, 2012 AM [D.E. 860] at 143-67. Such framing was necessary. During its closing argument, Epic Games repeatedly referenced the key dates and events (especially video game industry tradeshows and conferences unfamiliar to lay jurors) central to the disputed issues concerning the May 10, 2005 license agreement (“License Agreement”). Epic Games repeatedly recounted much of the relevant trial testimony and displayed and discussed many trial exhibits relating to those dates and events. See id. Without the timeline demonstratives, Epic Games’s closing argument may have overwhelmed the jurors, who did not possess the same intimate knowledge and command of the record that Epic Games’s counsel did. With the timeline demonstratives, however, the jurors possessed the necessary framework within which to synthesize the evidence and evaluate Epic Games’s arguments. Furthermore, the presentation of facts in Epic Games’s closing argument was not always chronological. Epic Games periodically moved forward and backward in time as its argument and the supporting evidence dictated. The time-line demonstratives helped the jury to keep pace.

Finally, the presentation of the timeline as two large, dry-erase demonstrative exhibits was necessary. The courtroom in which this trial occurred is equipped with technology allowing parties to publish exhibits on individual monitors provided in the jury box to each juror. The courtroom technology also permits a party to highlight on, underline on, write on, circle portions of, enlarge portions of, and otherwise manipulate trial exhibits when presenting evidence or arguments to a jury. Nevertheless, the courtroom technology did not provide an adequate means of displaying Epic Games’s timeline. After a brief introduction, Epic Games set up its timeline demonstratives at the beginning of its main argument on the parties’ breach of contract claims, presenting both timeline demonstratives simultaneously. See id. at 143-44. Using both timeline demonstratives, Epic Games then reviewed with the jury the relevant chronology and made *515handwritten notes on the exhibits. See id. Epic Games left both timeline demonstratives displayed as it transitioned into the details of its closing argument. As Epic Games presented its argument, counsel repeatedly referenced the timeline demonstratives and counsel’s handwritten notes on them. See id. at 143-167. Concurrently, Epic Games used the courtroom technology to display and discuss myriad exhibits supporting Epic Games’s arguments. See id. Despite the logistical complexity of Epic Games’s presentation, counsel’s closing argument was clear, coherent, and understandable. Such a presentation would not have been possible had Epic Games limited itself to the courtroom technology. The two large boards on which Epic Games divided its timeline allowed Epic Games to present the entire timeline to the jury at once and in an easily readable format. The courtroom technology, however, would have permitted only a single shrunken and unreadable slide, or two slides presented in an equally shrunken and unreadable split screen. Furthermore, had Epic Games relied exclusively on the courtroom technology to present its timeline, it would have had to juggle the timeline along with the numerous exhibits, and consequently would have lost the constant, overarching framework that made Epic Games’s arguments understandable to the jury. Finally, if Epic Games had used the courtroom technology to present its timeline, it would have lost counsel’s handwritten notes on the timeline whenever Epic Games displayed another exhibit to the jury. In short, Epic Games’s time-line demonstratives were “necessarily obtained for use in the case,” 28 U.S.C. § 1920(4), and Epic Games may recover the costs associated with creating them.

The enlarged copies of defendant’s exhibits 2383A and 2389B, however, were not “necessarily obtained for use in the case.” Id. Unlike counsel’s constant use of the timeline demonstratives to frame its argument relating to the parties’ breach of contract claims, Epic Games made only passing references to defendant’s exhibits 2383A and 2389B to support specific parts of its argument regarding its copyright infringement and trade secret misappropriation counterclaims. As for defendant’s exhibit 2383A, Epic Games displayed the enlarged copy to the jury, explained in one sentence the exhibit’s importance to Epic Games’s copyright infringement counterclaim, and then moved on to the next exhibit. See Epic Games Closing Tr. May 29, 2012 AM at 172-73. As for Epic Games’s use of the enlarged copy of defendant’s exhibit 2389B, Epic Games enlarged only the first page of the 348-page exhibit, briefly explained why defendant’s exhibit 2389B supported Epic Games’s trade secret misappropriation counterclaim, and then asked the jury to “read [defendant’s exhibit 2389B] yourself.” Id. at 167-68. For Epic Games’s limited use of defendant’s exhibits 2383A and 2389B, the courtroom technology would have sufficed. These two demonstrative exhibits were not necessary, and Epic Games may not recover the costs associated with them. See 28 U.S.C. § 1920(4).

Epic Games’s bill of costs indicates that one demonstrative exhibit cost $281.82 to create, and that the other three cost $256.20 each to create. See [D.E. 813-5] 1, 5-6. The bill of costs does not indicate which demonstrative exhibit cost what. See id. Accordingly, the court assumes that the timeline demonstratives cost $256.20 each to create. Thus, the court awards Epic Games $512.40 in costs related to the demonstrative exhibits Epic Games used in its closing arguments.

In sum, the court awards Epic Games $277,852.13 in costs.

*516III.

Epic Games seeks $2,201,813.51 in attorney’s fees and $1,088,337.29 for the cost of Epic Games’s testifying experts. See Def.’s Mot. Attorney’s Fees 1. As for Epic Games’s request for attorney’s fees, Federal Rule of Civil Procedure 54(d)(2) requires a party to make “[a] claim for attorney’s fees and related nontaxable expenses ... by motion unless the substantive law requires those fees to be proved at trial as an element of damages.” Fed.R.Civ.P. 54(d)(2)(A). A motion for attorney’s fees must (1) “be filed no later than 14 days after the entry of the judgment[,]” (2) “specify the judgment and the statute, rule, or other grounds entitling the movant to the award[,]” (3) “state the amount sought or provide a fair estimate of it[,]” and (4) “disclose, if the court so orders, the terms of any agreement about fees for the services for which the claim is made.” Fed.R.Civ.P. 54(d)(2)(B).

Epic Games timely moved for attorney’s fees and argues that paragraph 2(e)(iii) of the License Agreement, 17 U.S.C. § 505, and North Carolina General Statute § 66-154(d) support an award of $2,201,813.51 in attorney’s fees. Def.’s Mem. Supp. Mot. Attorney’s Fees 1-6; Def.’s Reply Mot. Attorney’s Fees 1-8.

Under North Carolina law, “a successful litigant may not recover attorneys’ fees, whether as costs or as an item of damages, unless such a recovery is expressly authorized by statute.” Stillwell Enters., Inc. v. Interstate Equip. Co., 300 N.C. 286, 289, 266 S.E.2d 812, 814 (1980); see Nucor Corp. v. Gen. Bearing Corp., 333 N.C. 148, 154, 423 S.E.2d 747, 751 (1992); Hicks v. Albertson, 284 N.C. 236, 238, 200 S.E.2d 40, 42 (1973). A contractual provision obligating one party to pay another party’s attorney’s fees is not enforceable absent a statutory basis for an award of attorney’s fees. Stillwell, 300 N.C. at 289, 266 S.E.2d at 814-15. There are certain equitable exceptions to this rule. See Ehrenhaus v. Baker, 717 S.E.2d 9, 32-35 (N.C.Ct.App.2011). Epic Games does not contend that its request for attorney’s fees falls into one of these exceptions. See Def.’s Mem. Supp. Mot. Attorney’s Fees 2; Def.’s Reply Mot. Attorney’s Fees 7-8.

Epic Games seeks attorney’s fees for its breach of contract counterclaim based on paragraph 2(e)(iii) of the License Agreement. See Def.’s Mem. Supp. Mot. Attorney’s Fees 2; Def.’s Reply Mot. Attorney’s Fees 7-8. Epic Games cites no statute authorizing such an award, see Def.’s Mem. Supp. Mot. Attorney’s Fees 2; Def.’s Reply Mot. Attorney’s Fees 7-8, and the court has found none.5 Thus, the court declines to award attorney’s fees based on paragraph 2(e)(iii) of the License Agreement. See Stillwell, 300 N.C. at 289, 266 S.E.2d at 814-15.

Epic Games next seeks attorney’s fees for its copyright infringement counterclaim based on 17 U.S.C. § 505. See Def.’s Mem. Supp. Mot. Attorney’s Fees 3-5; Def.’s Reply Mot. Attorney’s Fees 1-3. Section 505 provides that “[i]n any civil action under [the federal Copyright Act], ... the court may ... award a reasonable attorney’s fee to the prevailing party.” 17 U.S.C. § 505. Whether to award attorney’s fees pursuant to section 505 is within *517the court’s discretion. Fogerty v. Fantasy, Inc., 510 U.S. 517, 533-34, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994). When determining whether to award attorney’s fees under section 505, the court should consider four factors: (1) the parties’ motivation, (2) the objective reasonableness of the parties’ legal and factual positions, (3) the need for compensation and deterrence, and (4) any other factors that may warrant an award of attorney’s fees. Superior Form Builders, Inc. v. Dan Chase Taxidermy Supply Co., Inc., 74 F.3d 488, 498 (4th Cir.1996); Diamond Star Bldg. Corp. v. Freed, 30 F.3d 503, 505 (4th Cir.1994); Rosciszewski v. Arete Assocs., Inc., 1 F.3d 225, 234 (4th Cir.1993).

As for the parties’ motivation, willful infringement or bad faith by the infringing party is not required, but a court may consider it. See Rosciszewski, 1 F.3d at 234; ABC, Inc. v. Primetime 24, Joint Venture, 67 F.Supp.2d 558, 563 (M.D.N.C.1999), aff'd, 232 F.3d 886, 2000 WL 1648875 (4th Cir.2000) (per curiam) (unpublished table decision). The parties’ motivation is significant in this case. Despite Silicon Knights’s contrary argument, see Pl.’s Mem. Opp’n Mot. Attorney’s Fees 8, the evidence presented at trial overwhelmingly demonstrated that Silicon Knights willfully infringed Epic Games’s copyrights. Over a prolonged time period, Silicon Knights repeatedly and deliberately copied Epic Games’s copyrighted code into Silicon Knights’s video game and game engine code. See, e.g., Def.’s Exs. 2383, 2383A, 2383D, 2384, 2387, 2387A, 2388, 2501. Silicon Knights’s copying included not only Epic Games’s functional code, see Def.’s Exs. 2388, 2501, but also non-functional, internal comments Epic Games’s programmers had left for themselves. See Def.’s Exs. 2383D, 2388, 2501. Silicon Knights even failed to remove or correct typographical errors Epic Games’s programmers had made in those comments. See Def.’s Ex. 2383D.

Once Silicon Knights had copied Epic Games’s copyrighted code into Silicon Knights’s video game and game engine code, Silicon Knights initiated a prolonged coverup, removing Epic Games’s copyright notices and disguising Epic Games’s copyrighted code as Silicon Knights’s own. See, e.g., Def.’s Exs. 2387, 2387A, 240001, 2507. Silicon Knights then covered up its coverup, until Silicon Knights’s wrongdoing was revealed at trial through Epic Games’s cross-examination and the court’s own inquiries. See, e.g., Young Tr. May 25, 2012 PM (sealed) [D.E. 849-1] at 43-91; Tr. May 25, 2012 PM [D.E. 859-1] at 50-54; Tr. May 29, 2012 AM [D.E. 860] at 2-31. In short, Silicon Knights’s infringement of Epic Games’s copyrights w