S.D. Ala.: PACER Fees Cannot Be Taxed Because Parties Get a Free 'First Look'

On Friday, Chief Judge Kristi DuBose, issued a decision, Nail v. Shipp, No. 17-00195-KD-B, 2020 U.S. Dist. LEXIS 59079 (S.D. Ala. Apr. 3, 2020), ruling on the Plaintiffs' motion for attorneys' fees and costs. As part of her decision she ruled that that PACER charges and database creation costs are not awardable under 28 U.S. C.§ 1920. With respect to electronic discovery costs, she emphasized that the Plaintiffs failed to show how these where necessary, rather than just being for the counsel's convenience. Her opinion cites a holding of the Southern District of Florida, "creating an electronic database/compilation or enhanced digital files 'goes well beyond the statutory intent' for taxable digital copies." Id. at *36 (quoting, Finnerty v. Stiefel Labs., Inc., 900 F. Supp. 2d 1317, 1321-22 (S.D. Fla. Oct. 16, 2012)).

The Court also found that PACER charges should not be taxed because the parties receive a free look at court filings.

Copying and printing costs will also not be awardable if made only for the convenience of attorneys. Judge DuBose cited decisions ruling that while one copy of a set of trial exhibits may be necessary, a second and third will not. Descriptions of copying and printing of documents must be sufficient to show that they are necessary for the case, but it is not necessary to show the documents were actually admissible. Courtesy copies prepared for the court, as well as copies of trial exhibits for the court's use, are recoverable. A key point is whether or not a court requires a document. "Generally, Section 1920 does not provide for recovery of costs for binders and tabs . . . such costs are overhead and obtained for convenience of counsel, not as having been ordered or requested by the court." Nail, 2020 U.S. Dist. LEXIS 59079, at *47.

While § 1920 authorizes the taxation of deposition costs, including the videotaping of a deposition, "deposition discs, travel transcripts, PDF/USB bundles, summaries, mini-transcripts, CD/DVD transcripts, electronic transcripts (Etran), ASCII disks, 'synchronization,' etc., are deemed as incurred for the convenience of counsel and are non-recoverable." Id. at *51. Late fees and charges for expedited transcripts are also not recoverable. Itemized invoices are required for the deposition costs that can taxed.

D.C. Circuit Bill of Costs Ruling: Hosting and Processing Not Covered by § 1920

Today, the D.C. Circuit court issued a decision, United States ex rel. Barko, No. 19-7064, 2020 U.S. App. LEXIS 9615 (D.D.C. Mar. 27, 2020), reserving in part and affirming in part a decision of the district court to bill costs under 28 U.S.C. § 1920.

The defendant in this case, Kellogg, Brown & Root, Inc. reviewed 2.4 million pages in the Introspect electronic discovery platform. 171,000 documents were converted to tiff images and produced to Barko. Summary judgment was granted to KBR. It sought $33,000 for Introspect licensing fees; $10,000 for uploading the files to the platform; $15,000 for processing; $7,000 for deposition costs; and $5,000 for copying and printing. The district court denied a motion to reconsider the clerk's decision to tax the full bill.

The D.C. Circuit rejected KBR's position that the 2008 amendment of § 1920 allows for the recovery of both copying costs, and costs incurred in the process of making the copies - the incurred costs supposedly including hosting and processing costs. The Court noted that the Supreme Court has traditionally interpreted the statues in a "a modest way", and that § 1920 only "authorizes taxation of costs for the digital equivalent of a law-firm associate photocopying documents to be produced to opposing counsel." Id. at *9-10. KBR was only able to recover for the conversion of electronic files to the tiff format for production - a cost of only $362.41. "These tasks resemble the final stage of 'doc review' in the pre-digital age: photocopying the stack of responsive and privilege-screened documents to hand over to opposing counsel. Such costs were taxable then, and the e-discovery analogs of such costs are taxable now." Id. at *10. "[I]dentifying stacks of potentially relevant materials, culling those materials for documents containing specific keywords, screening those culled documents for potential privilege issues, Bates-stamping each screened document, and mailing discovery materials to opposing counsel" are not taxable, "whether performed by law-firm associate or algorithm." Id. at *11.

The D.C. Circuit did allow the taxation of $4,600 for binders, tab, and folders for exhibits.

D.N.M.: Preservation Order Requires Extreme Caution In iPhone Data Transfers

Yesterday, in Ellis v. Hobbs Police Dep't, No. 17‐1011 KWR/GBW, 2020 U.S. Dist. LEXIS 37328 (D.N.M. Mar. 4, 2020), Magistrate Judge Gregory B. Warmuth ruled that the Plaintiff be prohibited from introducing any evidence of audio recordings from his iPhone (except for impeachment), but declined to dismiss the case. In this employment discrimination suit, Ellis had used his iPhone 6 to record conversations he had in his workplace, but failed to produce all recordings made on the phone to the Defendant. Ellis subsequently gave his iPhone to his daughter and transferred the data on this phone to a new iPhone 8. After a preservation order was issued to the data on the phone, the data on the iPhone 6 was transferred at a Verizon store to a new iPhone 7 for the Plaintiff's daughter. The technician at the store assured Ellis that no data would be lost.

The Court concluded that data on the iPhone 6 was destroyed by a factory reset, and the treatment of the phone had been reckless. Ellis's failure to understand the nature of data transfer was no excuse. "]T]his ignorance was all the more reason to exercise extreme caution in doing anything that might alter the information stored on the phone. Mr. Ellis himself did not know whether the data that Defendants sought existed on the iPhone 6, and he was bound to act accordingly by preserving whatever data remained. He did not take reasonable steps to do so. The fact that any deleted audio recordings would not have been helpful or relevant to the case is immaterial under the language of the Court's preservation order, which directed Mr. Ellis to preserve 'any . . . file/data associated with [any recording] app.'" Id. at *20-21.