District of Oregon: No Taxation of Costs for Use of Documents in the Production Process

Yesterday, Senior Judge Anna Brown issued a decision, Christian v. Umpqua Bank, No. 3:16-cv-01938-BRR, 2018 U.S. Dist. LEXIS 114685 (D. Or. July 10, 2018) on the Defendant's Bill of Costs, after it was awarded summary judgment. Judge Brown awarded Umpua $7,670.81 of its requests costs of $17,701.91. 28 U.S.C. § 1920 allows the Court to tax, "[f]ees for exemplification and costs of making copies of any materials where the copies are necessarily obtained for use in the case", as well as printing fees; witness fees; fees of the clerks; fees for transcripts; expert costs, and fees for interpretation.

The opinion cites Taniguchi v. Kan Pacific Saipan, Ltd., 566 U.S. 560 (2012) in stating that the presumption in favor of awarding costs under Federal Rule of Civil Procedure 54(d) to the winning party, does not mean that the broadest possible interpretation of costs should be given under § 1920. The Court will only award costs allowed under § 1920, even if the opposing party did not object to the costs.

Judge Brown followed existing 9th Circuit precedent in refusing to classify pro hac vice application fees as taxable costs.

The Defendant sought recovery of $6,480.98 for copying costs incurred in uploading and processing electronic records in an electronic discovery review platform. Judge Brown held that, "the majority of the expenses sought by Defendant for copying costs do not relate to 'making copies' of documents for use in the litigation, but instead to the creation and maintenance of an electronic database for the storage and use of documents in the production process. These costs, therefore, are not recoverable under § 1920." Christian, 2018 U.S. Dist. LEXIS 114685, at *6. Only $38.86 of the $6,480.98 was awarded - this amount was listed in supporting documentation that showed this was the fee for obtaining unemployment and medical records. "The proper application of a narrowly construed § 1920(4) requires that the tasks and services for which an award of costs is being considered must be described and established with sufficient specificity, particularity, and clarity as to permit a determination that costs are awarded for making copies." Id..

$1,505 was awarded for witness fees, and nominal fees were awarded for subpoena, docket, and clerk fees.

The Defendant conceded the Plaintiff's objection to costs for rough draft transcripts and deposition videos.

District of Rhode Island Ruling on Seizure and Search of iPhone

On Monday, Judge William E. Smith denied a motion to suppress evidence seized in a search of the Defendant's iPhone 5 by a local police department. See, United States v. Gomes, Cr. No. 17-39-02, 2018 U.S. Dist. LEXIS 113181 (D.R.I. July 9, 2018). The Defendant was charged with sex trafficking minors.

The government argued that it had probable cause to believe that the Defendant's cell phone was used in a crime because he was seen using the phone in a car while driving a minor to a location where she was to engage in criminal sexual activity.

"Officer Corvese's observation of Gomes using his cellphone while occupying a car connected to criminal activity was sufficient for the officer to form a reasonable belief that the cellphone could provide valuable incriminating information. To ensure that Gomes did not attempt to conceal the phone, which was evidence in an ongoing investigation, Officer Corvese had the lawful authority to seize it. Thus, the officer's seizure of Gomes's iPhone incident to his arrest was constitutional." Id. at 15-16.

The phone was seized during an unlawful entry. The police subsequently obtained warrants to search the phone. They were only able to unlock the phone after getting a federal search warrant, after first not being able to search the phone with a state warrant. An interview with the victim gave the police independent grounds to search the phone, and made the inevitable discovery doctrine applicable. There was a clear exception to the exclusionary rule.

The Court also disagreed with the Defendant that the police's waiting three days after the seizure of the phone to obtain a search warrant was a violation of his rights under the Fourth Amendment. Judge Smith ruled that the three day period necessary to obtain the warrant was permitted. "the Court must balance law enforcement's concerns for preserving evidence against Gomes's privacy interest." Id. at *23.

S.D.N.Y. Asks: Does Accessing Reddit Posts Exceed the Scope of a Cell Phone Search Warrant?

Last week Judge Roman Nelson issued a decision, United States v. Chukwuemeka Okparaeka, No. 17-CR-225 (NSR), 2018 U.S. Dist. LEXIS 112687 (S.D.N.Y. July 5, 2018), denying the Defendant's motion to suppress. The Defendant was charged with the distribution of narcotics. Police obtained a warrant to search his cell phone allowing for the search and seizure of ESI concerning the owner's identity; evidence concerning the identity and location of his co-conspirators; records (including calendar entries) regarding the alleged offenses; and photos and video regarding the offenses. The decision focused on the fact that the police searched the cellphone's internet browsing history which showed that he made incriminating posts on Reddit.

Judge Roman held that the magistrate judge correctly determined that the totality of circumstances indicated there was probable cause to search the cell phone. Packages containing controlled substances were seized in a random search at an airport that an investigation showed were to be picked up by the Defendant at a post office. The Defendant used his cell phone to call the post office in an effort to pick up the package, and also tracked the package using an app called Privnote.

The Defendant argued that the police exceeded the scope of the warrant by searching his internet browsing history. The Court disagreed, finding that information about the owners or users of the cell phone could be found in the internet history, such as social media posts, as well as information about the alleged offenses, such visits to the site of a bank. ". . . [R]eview of the cellphone's internet browsing history and any already opened webpages was squarely within the scope of the warrant. Internet browsing history and any opened webpages are electronically stored information that is readily available within the subject device and could reveal evidence concerning the identity of the owners or users of the subject device or any records related to the subject offense." Id. at 35. The search was focused on particularized information, and did not "wander aimlessly" in searching for data on the device.

Judge Roman also held that the good faith exception to the exclusionary rule applied because the average officer would not have known that the searches exceeded the scope of the warrant. "It is reasonable for a police officer to believe that evidence concerning the identity of the owners or users of the subject device as well as any records concerning the subject offense would be present in the internet browsing history." Id. at *36.

Judge Roman distinguished between web pages already opened on the cell phone, and information accessed through the cell phone. The motions presented to the court did not make clear if the search involved accessing Reddit posts not already opened on the device. The Court ordered additional briefing on one question: "whether accessing unopened Reddit posts through Defendant's phone constituted a search of ESI within the scope of the search warrant." Id. at *38.