In Fells v. Virginia Dep’t of Trans., 2009 WL 866178 (E.D. Va. 2009), Plaintiff Frankie Fells, Sr., sued his former employer, defendant Virginia Department of Transportation, claiming unlawful discrimination against him on the basis of race, in violation of 42 U.S.C. § 2000e, et seq. On October 28, 2008, the Rocket Docket issued a memorandum final order granting defendant's motion for summary judgment, based on the applicable statute of limitations. The Court denied plaintiff's motion for reconsideration.
On November 4, 2008, defendant submitted a bill of costs, to which plaintiff objected on November 18, 2008. Defendant responded to the objection on November 25, 2008. On February 11, 2009, the Clerk issued a notice of taxing costs, and on February 23, 2009, the Clerk taxed costs in the amount of $1,739.60 against plaintiff. This amount included costs for depositions and copies of medical records, which were not contested. Defendant then filed a Motion for Costs asking the Court to review the Clerk's denial of costs in the amount of $15,741.50, which defendant paid for processing electronic data. Specifically, defendant paid this amount to a contractor for “electronic records initial processing, Metadata extraction, [and] file conversion.” These efforts were the first steps to creating a database that would facilitate discovery, but defendant abandoned the project after plaintiff did not provide terms to limit the scope of the data. Defendant sought to recover those initial electronic processing costs by claiming that they were taxable expenses under 28 U.S.C. § 1920(4), specifically comparing such costs to the expressly recoverable costs of copying and exemplification of records.
Section 1920 provides that “[a] judge or clerk of any court of the United States may tax as costs ... [f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case [.]” While the Fourth Circuit has not addressed whether taxable expenses include electronic methods of exemplifying and copying documents, the Court noted that the Sixth Circuit has held that “electronic scanning and imaging could be interpreted as ‘exemplification and copies of papers.’” BDT Products, Inc., 405 F.3d at 419-20 (finding no abuse of discretion in the distract court's taxing of copying costs based on electronic scanning and imaging); see also Brown v. McGraw Hill Cos., Inc., 526 F.Supp.2d 950, 959 (N.D.Iowa 2007) (holding that “electronic scanning of documents is the modern-day equivalent of ‘exemplification and copies of paper,’ and therefore, can be taxed pursuant to § 1920(4).”).
The Court however concluded that even if it adopted the Sixth Circuit's analysis, defendant did not claim the expenses for electronic scanning of documents. Instead, defendant sought the costs of “electronic records initial processing, Metadata extraction, [and] file conversion.” As noted by the Court, scanning or imaging of documents converts a paper document into an electronic document. By contrast, defendant employed techniques that create electronically searchable documents and the Court refused to extend the definition of recoverable costs to include the costs of creating electronically searchable documents, as opposed to reproducing paper documents in electronic form.
I'm not persuaded by the opinion's distinction between creation and reproduction of documents. I don't think technology works on such distinctions. For instance, if I have a scanner that, in one expensive operation, scans a document, reads its text, makes the doc searchable, and makes the document available as a pdf, do I get that cost in under 1920 just because I bought a machine that does everything at once? Yes, presumably.
Courts are balking at the cost, not at the function. The technology and features it provides (e.g., searchable documents) make everyones lives better.
Posted by: Thirteen | April 20, 2009 at 02:23 PM