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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.

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