Jo Ann Howard & Associates, P.C. et. al. v. Cassity et. al., Case No. 09-01252 (E.D. Mo., Nov. 20, 2015), a receivership case, involves claims of violations of RICO and the Lanham Act as well as certain state-law tort claims against over 40 Defendants. Plaintiffs received a favorable jury verdict against Defendant PNC Bank and sought recovery of costs pursuant to FRCP 54(d), which permits costs other than attorneys’ fees to be awarded to the prevailing party against the losing party. 28 U.S.C. § 1920 delineates the permitted costs.
Plaintiffs sought taxation of costs for, among other things, electronic discovery costs. Plaintiffs sought these costs under Section 1920(4) – Exemplification and Copying Costs. While the court noted that it could tax both discovery-related and trial expenses under 1920(4) as copying costs, the court noted that the law is inconsistent nationwide about what constitutes “copies” for purposes of 1920(4).
Due to lack of clear precedent in the Eighth Circuit, the court looked to the Federal Circuit and the Ninth Circuit, both which have held that “making copies” includes “faithful production” of electronically stored information, including scanning, conversion, imaging, file transfers, and extraction of metadata. Based on this precedent, the court awarded Plaintiffs over $300,000 of their requested ESI costs, agreeing that the ESI procedures permitted a complete and accurate production of digital copies. The court also found it persuasive that Plaintiffs incurred the costs because of a standing order requiring Plaintiffs to produce to Defendant all documents produced by Plaintiff to any party during the case, meaning the copies were “necessarily” obtained. The court did reduce some of the costs requested by Plaintiffs for work performed by their in-house tech specialist.
Finally, although Defendant PNC Bank was not the only Defendant, the court taxed the full amount to PNC, because the Defendants all were jointly and severally liable in the Eight Circuit because of the presumption in Rule 54(d).