S.D. Ind.: Searching Electronic Records Cannot Be Taxed Under 28 U.S.C. § 1920


This past week, Judge Robert L. Miller, Jr. issued a decision, In re Method of Processing Etha Related Subsystems '858 Patent Litig., No. 1:10-ml-02181-RLM-DML, 2020 U.S. Dist. LEXIS 8694 (S.D. Ind. Jan. 15, 2020), on the Defendants' bill of costs. The Plaintiffs objected that some of the costs should not be recoverable under 28 U.S.C. 1920. Here's a rundown of how the Court ruled:

1. Not sharing the cost for deposition transcripts with other defendants was necessary and reasonable, and the invoices did not need to enumerate late fees, charges for conference rooms, and the reporter's travel expenses. However, while some incidental costs are recoverable, late fees cannot be recoverable when no explanation is provided for them.

2. The amount that the defendants wanted to be reimbursed for the transcripts was unreasonable. Judge Miller determined that transcript costs could only be recovered up to $3.65 per page for original certified transcripts and 90¢ for certified copies, but declined to allow recovery for the copies at all, noting a split in authority on this point in the 7th Circuit.

3. There is also a circuit split as to whether or not indices should be included as part of the total page count of the transcript. The Court decided that, "The court is persuaded that, generally, indices are ordered for the convenience of counsel. Beyond citing to favorable cases, ICM has provided no argument as to why indices were reasonable and necessary in this case. The court won't tax their costs on the plaintiffs." Id. at *6.

4. The Court did not find that it was necessary to object to the videotaping of a deposition at the time of deposition, and decided not to tax the cost for the video to the Plaintiffs in all instances. "The court doesn't agree that the mere fact that the witnesses weren't parties or were adverse expert witnesses made these video depositions reasonable and necessary. Since Al-Corn provided no additional reasons to anticipate the witnesses' unavailability at trial, the court won't tax plaintiffs for the video depositions." Id. at *9. The fact that a party could not be subpoenaed was also not a sufficient basis on which to tax the cost of videotaping their deposition.

5. Fees for service of process are limited to the amount charged by the U.S. Marshals service, which is $65 per hour.

6. The Court would also not allow recovery for copying or blow back costs where the bill of costs did not state what the copies were for, or identify the documents that were copied.

7. Witness travel expenses are limited to 58¢ per mile.

8. "Fees for searching electronic records and for research aren't recoverable under § 1920, but must be sought in a motion for attorneys fees." Id. at *14.

9. Judge Miller also declined to tax the costs of Fedex deliveries and conference calls under §1920.


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