Key Insight: Reasoning that ?[t]he inquiry about what electronic processes are taxable turns on whether they are part of making copies ?necessarily obtained for use in the case? or instead are solely for the convenience of counsel? the court indicated that it would award costs for load file preparation, but not for processing data
Electronic Data Involved: Taxable Costs
Key Insight: Following discussion of prior decisions in the 3rd, 4th, 6th, 9th and federal circuit courts, the District Court adopted ?the [Third Circuit?s] Race Tires approach, with the caveat that the costs of copying metadata and hard drives be included for reasons stated well [by the Federal Circuit and the Sixth Circuit] in CBT Flint and Colosi? and reduced the award of costs related to e-Discovery ?to include only costs for Bates stamping, shipping and delivery of electronic documents, native file and email conversions, and TIFF image creation and conversion?
Nature of Case: Patent Infringement
Electronic Data Involved: Taxable costs of e-Discovery
Key Insight: Court declined to allow recovery for ?electronic discovery vendor fees? because they are ?outside the scope of Section 1920? (28 U.S.C. 1920)
Nature of Case: Copyright infringement
Electronic Data Involved: Taxable Costs
Key Insight: Plaintiffs brought a ?Motion to Review Clerk?s Taxing of Costs Under F.R.C.P. 54(D)(1).? Specifically, Plaintiffs sought review of the clerk?s determination ?concerning the costs taxed amount of $55,649.98, which accounts for Defendants contracting with a private consulting company, Cyopsis, to retrieve and convert ESI into a retrievable format to produce information requested by Plaintiffs.? The court held that ?[b]ecause Defendants? costs related to the electronically stored information (?ESI?) are expenses enumerated in 28 U.S.C. ? 1920(4), and Plaintiffs were aware that Defendants would have to retain an outside consultant to retrieve and convert the ESI into a retrievable format, Plaintiffs? Motion is denied.?
Electronic Data Involved: ESI
Key Insight: Court allowed taxable costs for ?the scanning and conversion of documents into TIFF format? noting that the conversion was ?critical due to the complex nature of the case and the sheer volume of documents that were exchanged during discovery and trial? and citing Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158, 160, 171 (3d Cir.2012)
Nature of Case: Consolidated claims under Hatch-Waxman Act
Electronic Data Involved: Taxable Costs
Key Insight: Court found Defendants were entitled to costs, including costs related to scanning, OCR bates labeling, and TIFF/PDF conversion but not costs associated with document collection, password recovery, searching, data hosting/electronic storage services and the fee for an e-discovery specialist
Electronic Data Involved: Taxable costs
Key Insight: Court approved taxation of costs related to TIFF conversion and ?uploading responsive documents through the use of a File Transfer Protocol,? but declined to allow costs related to ?Processing Initial Dataset,? ?Culling and Posting Resulting Data Subset,? ?Optical Character Recognition (OCR) Processing,? ?ID/Conversion of Non-searchable Docs to Searchable,? ?Project Management,? ?Hosting Active-Data,? and ?document unitization?
Electronic Data Involved: Taxable e-Discovery costs
Key Insight: Observing that courts in the district have found that fees for “.TIFF and OCR conversion, Bates stamping, load file and other physical media generation” are recoverable as copying fees under Section 1920(4), but that costs of assembling, collecting, processing, storing or managing ESI are not recoverable, court reduced $61,549 award of taxable costs where prevailing party failed to provide sufficient detail of its e-discovery costs to allow the court to determine what items were properly taxable; court instead awarded costs of $6,870 which represented a charge of $0.03 per document for bates stamping and TIFF conversion of 229,000 documents
Nature of Case: Copyright infringement, unfair competition
Electronic Data Involved: ESI
Key Insight: Rejecting plaintiff’s challenge to $65,000 for scanning expenses as taxable costs where discovery production was voluminous and parties had agreed that defendants would produce their responsive documents in electronic format, court ruled that scanning of documents to create digital duplicates amounted to “making copies of materials” under Section 1920(4); however, because invoices indicated that requested costs may include more than just scanning, court would allow defendants to supplement bill of costs to specifically identify which portion of invoice was for scanning/making copies or to clarify that the entire cost was, in fact, for scanning/making copies
Nature of Case: Unaccompanied alien minors brought action against Office of Refugee Resettlement alleging they were physically and sexually abused while in detention awaiting final adjudication of their immigration status
Electronic Data Involved: Electronic images of paper documents
Key Insight: Court overruled plaintiffs? objection to clerk?s ruling on defendant?s bill of costs to the extent it awarded defendant taxable costs associated with retrieving computer information, noting that defendant sought reimbursement of only the costs incurred in the extraction endeavor — not for help in reviewing the documents; finding the request reasonable, the court observed: “Plaintiffs asked Defendant for 20 years of information from defendant?s mine site in Ladysmith, Wisconsin. Given the nature of the information storage over this period of time, it was reasonable, if not essential, for defendant to employ an expert third-party forensic expert to extract the information.?
Nature of Case: Environmental damage to the Flambeau River
Electronic Data Involved: 20 years of information
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