Defendants’ Use And Maintenance Of An E-discovery Database Ruled Not A Recoverable Cost
- ILS Team
In SAEVIK v. SWEDISH MEDICAL CENTER and REBECCA DAY, No. C-19-1992-JCC (W.D. Wash. March 9, 2022), before the Court was Plaintiff’s motion to retax costs.
Following the Court’s previous summary judgment order, Defendants, as the prevailing parties, submitted a bill of costs seeking $28,995.51, that included, among others, $17,859.16 in e-discovery costs. After $4,881.64 was disallowed, the Clerk of the Court entered an award for the remaining $24,113.87. Plaintiff then moved the Court to vacate or modify the costs.
Under Federal Rule of Civil Procedure Rule 54(d)(1), “a prevailing party can recover costs, other than attorney fees, from a losing party.” These recoupable costs include: “(1) the clerk’s and marshal’s fee, (2) fees for printed or electronically recorded transcripts obtained for use in the case (3) printing and witness fees, (4) exemplification and copy costs if obtained for use in the case, (5) docket fees, and (6) court-appointed expert and interpreter compensation.” 28 U.S.C. § 1920.
The losing party must show why costs should not be awarded. Additionally, the Court is not required to specify reasons for imposing costs upon the losing party. However, it must do so when refusing to tax costs.
Plaintiff asked the Court to set aside, stay, or modify Defendants’ costs award. Plaintiff argued that the amount awarded would unduly burden her, given her lack of employment and medical situation.
The Court, however, could not set aside or vacate award costs based on the losing party’s limited financial resources. Rather, the Court noted there must be “extraordinary” reasons that justify denying costs. The Court found that Plaintiff failed to explain why her limited means makes the case “extraordinary” considering Plaintiff’s late-filed declarations that supported her alleged financial position.
However, following the Court’s de novo review of Defendants’ costs, a modification of the amount sought was found to be appropriate.
28 U.S.C. § 1920(2) “allows the prevailing party to recover fees ‘for printed or electronically recorded transcripts necessarily obtained for use in the case.’” Defendants sought $10,716.35 in deposition costs, which included $1,513.13 for videotaping. Since the video recording was duplicative of the stenographic reporting, Defendants had to explain why both recordings were necessary.
Defendants claimed deposition transcripts were “necessary for the case” in that both parties extensively cited the transcript in their summary judgment briefings, and they intended to use the videotaped deposition at trial.
The Court reasoned that although the use of the transcript of Plaintiff’s deposition in the summary judgment briefing might explain why the stenographic reporting of the deposition was necessary, Defendants failed to adequately explain why they also needed a videotaped deposition. Therefore, the Court disallowed the amount sought for videotaping.
With respect to the e-discovery costs, 28 U.S.C. § 1920(4) “allows the prevailing party to recover document copying costs.” The statute, however, is “now generally regarded to allow for recoupment of ancillary costs associated with reproducing electronic materials.” Among others, prevailing party may recover expenses incurred for converting electronic materials to production formats, rendering them searchable using optical character recognition, and preserving the underlying metadata. However, the prevailing party cannot recover expenses incurred “leading up to, in conjunction with or after duplication” of those materials.
Defendants sought $17,859.16 in e-discovery and copy costs. Those costs included outside vendor charges for certifying and handling medical records, as well as charges for various internal support services.
The Court found that Defendants cannot recover the majority of these costs since they did not relate to “making copies” of electronic or paper documents. Instead, they related to Defendants’ use and maintenance of its e-discovery database, as well as management expenses.
Accordingly, the Court granted in part and denied in part Plaintiff’s motion to retax. Defendants recovered $924.94 in e-discovery costs and other costs, for the total amount of $9,029.02.