W.D.N.C. - Can't Produce Emails as PDFs

Last week a decision was issued, David A. Johnson & Alda v. Italian Shoemakers, 3:17-cv-00740-FDW-DSC, 2018 U.S. Dist. LEXIS 181325 (W.D.N.C. Oct. 22, 2018), reviewing a magistrate judge's order granting in part and denying in part the Defendant's Motion to Compel, and requiring the Plaintiff to produce documents as they were kept in the usual course of business. The Court noted that Federal Rule of Civil Procedure 34(b) requires that documents be produced in the manner in which they are kept in the regular course of business, or in reasonably usable form.

In this opinion the Court concluded that a producing party need not organize and label documents as they are kept in the regular course of business because a business would keep its documents, "in a way that maximizes their usefulness in the day-to-day operations of the business". Id. at *3 (quoting, T.N. Taube Corp. v. Marine Midland Mortgage Corp.,136 F.R.D. 449, 456 (W.D.N.C. 1991)). The producing party bears the burden of proving that the documents were produced in the manner in which they are kept in the usual course of business.

The producing party bears the burden on proving that its document was produced as maintained during the usual course of its business. "As to the second requirement, a party satisfies it obligations under Rule 34 when the party provides documents that are searchable and/or sortable by metadata fields." Ibid.

Despite the fact that the Plaintiffs contended that none of the documents they had to produce were withheld, censored, or redacted, the Court found fault with their production of email messages as PDF files, which is not how such messages are kept in the ordinary course of business, and their failure to label documents as responsive to specific document requests. The Court granted the Motion for Sanctions, and awarded expenses related to the Motion to Compel.

N.D. Ohio: Data Hosting and User License Fees Not Covered by 28 U.S.C. § 1920

On Monday, Judge Donald C. Nugent, issued a decision in Consumer Fin. Prot. Bureau v. Weltman, Weinberg & Reis, Co., L.P.A., No. 1:17 CV 817, 2018 U.S. Dist. LEXIS 181121 (N.D. Ohio Oct. 22, 2018) approving in part and denying in part a Bill of Costs submitted by the Defendant Weltman.

28 U.S.C. § 1920 allows for the following fees to be taxed:

1. Clerk and marshal fees.

2. Court reporter fees.

3. Printing and witness fees.

4. Copying

5. Docket fees

6. Compensation of experts and interpreters.

[The taxation of costs can be confusing concept. To be clear see this definition by Lexis, "Taxation of costs is the procedure by which the court assesses the amount of costs payable under a costs order by the paying party to the receiving party (generally the winning party)."]

The Defendant prevailed in the case and sought $60,000 in copying fees and $7,000 for transcript costs. The Plaintiff argued the costs should only be $7.000. The Defendant's copying or 'exemplification' costs include $53,000 for user licensing, data hosting, loading and exporting data into Relativity, processing and audio file transcription. Judge Nugent noted that the Sixth Circuit has not addressed the reimbursement of these costs under 28 U.S.C. § 1920, but has approved the cost of imaging a hard drive.

The Court noted that the Defendant did not show that the need for its electronic discovery system was caused by the Plaintiff; illustrate that the system was more efficient than, "copying and distributing information in a more traditional manner"; demonstrate which costs were necessary for the case and which were for the convenience of the attorneys; or prove that hosting and user licenses were incurred for copying discovery materials. Id. at *7-8. "Defendant states that these costs were incurred to maintain a database used for storage and to assist Defendant's review of the materials, neither of which is a recoverable cost under the statute." Id. at 8. Judge Nugent chose to follow the plain language of 28 U.S.C. § 1920 and deny user license and hosting fees.

However, relying on the Sixth Circuit's decision in Colosi v. Jones Lang LaSalle Americas, Inc., 781 F.3d 293 (6th Cir. 2015), Judge Nugent ruled, that, "[d]ata conversion, audio transcription, and export of data,all suggest a replication of data that would fit the broader definition of electronic 'copying' adopted by the Sixth Circuit in Colosi.".

The transcription of 140 consumer calls was found to be a reasonable expense for trial preparation and witness examination. The Court rejected the Plaintiff's argument that transcripts were not necessary because the audio could have been played at the trial instead, noting the difficulty of searching through audio for specific content. "It is not necessary, for recovery under Section 1920 that the transcriptions, themselves, actually be used at trial." Weltman, 2018 U.S. Dist. LEXIS 181121, at *11-12.

The Defendant's Bill of Costs was approved for $10,845.65.

S.D. Ala.: No Basis Under GDPR for Protective Order Preventing Videotaping of Deposition

On Friday, Magistrate Judge P. Bradley Murray, issued a decision, D'Amico Dry D.A.C. v. Nikka Fin. Corp., No. 18-0284-KD-MU, 2018 U.S. Dist. LEXIS 179858 (S.D. Ala. Oct. 19, 2018) denying a motion for a protective order. This is an admiralty action in which d'Amico seeks to collect a $1.7 million foreign judgment against Nikka under the alter ego theory. The motion for a protective order aimed to protect Nikka's 30(b)(6) representative and records custodian from taking a deposition that would be videotaped. The Defendant argued that it did not receive notice that the deposition would be videotaped; the purpose of the videotaping was to embarrass, intimidate, and harass the witness; and the videotaping would violate his privacy rights under the Data Protection Act, the General Data Protection Regulation, and the European Convention on Human Rights and the Human Rights Act. Nikka makes the argument that the video of the deposition would be protected personal data.

Judge Murray declined to issue on a protective order on the basis of lack of notice because the October 5, 2018 motion for a protective order itself was filed well in advance of the deposition scheduled for October 24, 2018. He also denied the motion on the basis of it being used to harass the witness because of Nikka's failure to establish the actual harm that would be suffered and because the witness was able to endure testifying in the trial of a related action in New York.

Judge Murray also rejected the privacy concerns of the witness, stating that the GDPR and other privacy regulations were not a basis to reject the use of video of an individual in a deposition. "[T]hose Acts are directed to the use of videotaped images of persons unaware (at least,initially) of being videotaped. Here, of course, Mr. Coronis is well aware his deposition is to be videotaped and, therefore, having in hand no authority to the contrary supplied by Nikka, the undersigned DECLINES to find that the Acts to which Nikka cites are applicable to Mr. Coronis' duly-noticed videotaped deposition,which is to be utilized in civil litigation in the United States." Id. at *11-12. However to "ease his privacy concerns" Judge Murray did order that the video of the deposition not be publicly disclosed or used in any other case or investigation.