Court Denies Motion to Re-Tax Costs Related to Conversion of ESI, Including Costs for "Project Management

Jardin v. DATAllegro, Inc., No. 08-CV-1462-IEG (WVG), 2011 WL 4835742 (S.D. Cal. Oct. 12, 2011)

Here, the court denied Plaintiff’s “motion to stay, deny, or re-tax the Clerk’s taxation of costs awarded to Defendants.” Specifically, the court declined to deny or re-tax costs awarded for converting data to the .TIFF format or to deny or re-tax costs related to a project manager who “oversaw the process of converting data to the .TIFF format to prevent inconsistent or duplicative processing.” Regarding the latter, the court reasoned that “[b]ecause the project manager’s duties were limited to the physical production of data, the related costs are recoverable.”

“Rule 54(d) creates a presumption in favor of awarding costs to prevailing parties, and it is incumbent upon the losing party to demonstrate why the costs should not be awarded.” However, "the court's discretion in awarding costs . . . is limited to awarding costs that are within the scope of 28 U.S.C. § 1920." 28 U.S.C. § 1920 lists taxable costs, including “[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case.”

After establishing the relevant legal standard, the court first addressed plaintiff's motion to deny costs entirely and quickly rejected plaintiff's arguments that costs should be denied because "he litigated the action in good faith," because "the issues in the case were close and difficult" or because "there is a significant economic disparity between Microsoft and him." The court then turned to the question of whether the costs should be reduced.

Addressing costs related to the conversion of data to the .TIFF format, the court recognized that “federal courts are divided over whether converting e-data from one format to another is a valid exemplification cost.” However, after noting that the Federal Rules require the production of ESI, the court recognized that “converting data into a format that all parties can utilize not only allows for more efficient and less expensive discovery, but is often necessary for any meaningful discovery at all” and that “the processes required . . . are ‘highly technical’ and ‘substantially different from ‘the types of services that attorneys or paralegals are trained for or capable of providing’’” and thus concluded:

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Source: ediscoverylaw.com