An ongoing issue courts across the country are grappling with is when a prevailing party is seeking costs under Fed. R. Civ. P. 54(d)(1). The rule allows for costs, over and beyond attorneys’ fees, to be recovered if the cost falls under one of the allowed categories.
In a recent memorandum opinion in Amdocs (Israel) Limited v. Openet Telecom, Inc., No. 1:10cv910 (E.D.Va 2013), a district court considered the defendant’s request for $67,512.71 for “production copying, file conversion and metadata extraction.” To put this amount in perspective, this equates to about five cents per page. Plaintiff disputed the amount and argued that such costs are not taxable.
In the case, the parties had agreed to the following as part of the Joint Discovery Plan:
“The parties agree that all documents (whether or not they are stored electronically) shall be produced electronically (e.g. on compact disks, DVDs, or hard drives) in imaged files (TIFFs or PDFs), with load files in mutually agreeable formats, compatible with the receiving party’s document management system. Documents need not be produced in native format.”
Defendant pointed to this agreement as evidence that the metadata extraction was part of the “load files” and therefore, it was required to produce the documents in the agreed-upon format. However, the court cited a number of cases that do not include other electronic costs as part of allowed taxable costs in Fed. R. Civ. P. 54(d)(1). This includes the famous Race Car Tires II case, which held only the functional equivalent of “making copies” is properly taxable under the rule. Other holdings the court cited was that electronic Bates stamping and converting native files to TIFF files would be taxable.
As the defendants did not delineate amounts of “production copying, file conversion and metadata extraction,” the court reduced the costs by one-third to remove “metadata extraction,” and ordered the remaining costs taxable.