Opinion
Case No: 6:14-cv-307-Orl-40GJK
08-31-2016
BLITZ TELECOM CONSULTING, LLC, Plaintiff, v. PEERLESS NETWORK, INC., Defendant.
REPORT AND RECOMMENDATION
This cause came on for consideration without oral argument on the following motion filed herein:
MOTION: PLAINTIFF'S MOTION TO TAX COSTS (Doc. No. 242)I. BACKGROUND.
FILED: March 26, 2016
THEREON it is RECOMMENDED that the motion be GRANTED in part and DENIED in part.
On February 24, 2014, Plaintiff filed a complaint (the "Complaint") against Defendant alleging Defendant breached the parties' contract by failing to pay it co-marking fees for telecommunications traffic Plaintiff placed on Defendant's network. Doc. No. 1. On March 2, 2016, the case proceeded to a jury trial. Doc. No. 222. On March 9, 2016, the jury returned a verdict in Plaintiff's favor. Doc. No. 235. On March 11, 2016, the Clerk entered judgment in Plaintiff's favor and against Defendant. Doc. No. 238. On March 26, 2016, Plaintiff filed a Motion to Tax Costs (the "Motion"). Doc. No. 242. On March 28, 2016, Plaintiff filed an amended proposed Bill of Costs. Doc. No. 244. On April 8, 2016, Defendant filed a response in opposition to the Motion. Doc. No. 255. II. LAW.
Defendant asserted several counter-claims against Plaintiff, but the jury returned a verdict in Plaintiff's favor on each of Defendant's counter-claims. Doc. No. 235.
On August 8, 2016, the Clerk entered an amended judgment in Plaintiff's favor and against Defendant. Doc. No. 282.
Rule 54, Federal Rules of Civil Procedure, provides, in relevant part, that "costs - other than attorney's fees - should be allowed to the prevailing party." Fed. R. Civ. P. 54(d)(1). There is a presumption in favor of awarding costs. Arcadian Fertilizer, L.P. v. MPW Indus. Servs., Inc., 249 F.3d 1293, 1296 (11th Cir. 2001). However, "the district court's discretion not to award the full amount of costs incurred by the prevailing party is not unfettered, 'since denial of costs is in the nature of a penalty for some defection on [the prevailing party's] part in the course of the litigation.'" Chapman v. AI Transp., 229 F.3d 1012, 1039 (11th Cir. 2000) (quoting Walters v. Roadway Express, Inc., 557 F.2d 521, 526 (5th Cir. 1977)) (citation omitted). To defeat the presumption and deny some or all costs, a district court must have and state a sound basis for doing so. Id.
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.
"[A] court may only tax costs as authorized by statute." EEOC v. W & O, Inc., 213 F.3d 600, 620 (11th Cir. 2000). Thus, a district court may not award costs under Rule 54 "in excess of those permitted by Congress under 28 U.S.C. § 1920." Maris Distrib. Co. v. Anheuser-Busch, Inc., 302 F.3d 1207, 1225 (11th Cir. 2002) (citing Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437 (1987)). Section 1920 specifies which costs are recoverable, and provides as follows:
A judge or clerk of any court of the United States may tax as costs the following:Id. When challenging whether costs are properly taxable, the burden lies with the challenging party. Ass'n for Disabled Americans, Inc. v. Integra Resort Mgmt., Inc., 385 F. Supp. 2d 1272, 1288 (M.D. Fla. 2005). However, the party seeking costs must provide sufficient detail and documentation regarding the requested costs so the opposing party may challenge the costs and the court may conduct a meaningful review of the costs. Lee v. Am. Eagle Airlines, Inc., 93 F. Supp. 2d 1322, 1335-36 (S.D. Fla. 2000). Failure to provide sufficient detail or supporting documentation verifying the costs incurred and the services rendered can be grounds for denial of costs. Pelc v. Nowak, Case No. 8:11-cv-79-T-17TGW, 2013 WL 3771233, at *5 (M.D. Fla. July 17, 2013) (citing Johnson v. Mortham, 173 F.R.D. 313, 318 (N.D. Fla. 1997)). III. ANALYSIS.
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.
There is no dispute Plaintiff is entitled to recover costs pursuant § 1920. See Doc. No. 255. Plaintiff requests an award of $117,658.25 in costs. Doc. Nos. 242; 244. Defendant contests a significant portion of the costs sought by Plaintiff, arguing Plaintiff is only entitled to an award of $10,676.91 in costs. Doc. No. 255.
A. The Filing Fee.
Plaintiff seeks to recover the filing fee. Doc. Nos. 242 at 2; 244-1 at 2. Defendant does not object to this cost. Doc. No. 255 at 2. The filing fee is recoverable and reasonable. 28 U.S.C. § 1920(1). Accordingly, the undersigned finds Plaintiff is entitled to recover $400.00 in costs for the filing fee.
B. Pro Hac Vice Fees.
Plaintiff seeks to recover pro hac vice fees. Doc. Nos. 242 at 2; 244-1 at 3-6. Defendant does not object to these costs. Doc. No. 255 at 2. The lack of opposition is irrelevant since the Court cannot award costs outside the scope of § 1920. See Maris, 302 F.3d at 1225. There is no binding authority on this issue, but a majority of district courts in this Circuit have concluded pro hac vice fees are not recoverable under § 1920. E.g., Eagle Ins. Co. v. Johnson, 982 F.Supp. 1456, 1459 (M.D. Ala. 1997) aff'd, 162 F.3d 98 (11th Cir. 1998); Covington v. Arizona Beverage Co., LLC, 2011 WL 810592, at *3-4 (S.D. Fla. Jan. 25, 2011); Cathey v. Sweeney, 2007 WL 1385657, at *1 (S.D. Ga. May 8, 2007); but see Ford Motor Credit Co., LLC v. Delosh, Case No. 8:09-cv-2124-T-23MAP, 2010 WL 1837794, at *2-3 (M.D. Fla. Apr. 16, 2010). The undersigned is persuaded by the majority of cases that conclude pro hac vice fees are not recoverable under § 1920(1). See Zarra v. Sun Sentinel Co., 2013 WL 704770, at *2 (S.D. Fla. Feb. 26, 2013) (denying request to recover pro hac vice fees despite the lack of opposition); Lane v. Accredited Collection Agency Inc., Case No. 6:13-cv-530-Orl-18GJK, 2014 WL 1685677, at *10 (M.D. Fla. Apr. 28, 2014) (finding plaintiff was not entitled to recover pro hac vice fees on default judgment). Accordingly, the undersigned finds Plaintiff's request for costs should be reduced by $300.00.
This figure represents the following costs: 1) a total of $150.00 for the pro hac vice fee for Tammy G. Cohen, Esq. (Doc. No. 244-1 at 3-4); and 2) a total of $150.00 for the pro hac vice fee for David S. Sellman, Esq. (Id. at 5-6).
C. Fees for Service of Summons.
Plaintiff seeks to recover the fee for serving Defendant with the summons. Doc. Nos. 242 at 2; 244 at 1; 244-1 at 8. Defendant does not object to this cost. Doc. No. 255 at 2. The cost for serving Defendant with the summons is recoverable and reasonable. 28 U.S.C. § 1920(1). Accordingly, the undersigned finds Plaintiff is entitled to recover $60.00 in costs for serving Defendant with the summons.
D. Fees for Printed or Electronically Recorded Transcripts.
Plaintiff seeks costs for deposition, hearing and trial transcripts. Doc. Nos. 242 at 3-8; 244-1 at 10-23. As discussed below, the undersigned finds Plaintiff is only entitled to recover a portion of the transcript costs requested.
1. Deposition Transcripts.
Plaintiff seeks costs for ten (10) depositions, several of which were recorded by stenographic and nonstenographic means, i.e., video. Doc. Nos. 242 at 3-5; 244-1 at 11-22. The chart below details the depositions at issue and the total costs associated with each deposition:
| Deponent | Cost |
|---|---|
| Rick Knight | $3,056.95 |
| Keith Campbell | $846.10 |
| Douglas Lee | $1,134.75 |
| John Barnicle | $2,270.40 |
| Robert Russell | $1,014.30 |
| Neil Rosenblit | $465.05 |
| Plaintiff's 30(b)(6) Representative (Mr. Russell) | $144.25 |
| James Finneran | $1,353.60 |
| James Cunningham | $913.50 |
| Defendant's 30(b)(6) Representative (Brian Gifford) | $3,518.65 |
Plaintiff seeks costs for obtaining the transcript and video recording of Messrs. Knight's, Barnicle's and Gifford's depositions. Doc. No. 244-1 at 11-12, 15-16, 22. Defendant maintains the recovery of both costs is unreasonably duplicative, and argues Plaintiff should only be permitted to recover the costs of videotaping the foregoing depositions. Doc. No. 255 at 4-5. The prevailing party may recover the costs of transcribing and videotaping a deposition under § 1920 if the notice of deposition indicated the deposition would be recorded by stenographic and nonstenographic means, the opposing party did not object to the method of recordation prior to the deposition, and the prevailing party explains why it was necessary to obtain both a transcript and video recording of the deposition. Morrison v. Reichhold Chems., Inc., 97 F.3d 460, 465 (11th Cir. 1996).
The depositions of other witnesses were also transcribed and videotaped. Doc. No. 245-1 at 1-2, 5-6, 18. However, Plaintiff is only seeking costs for obtaining the transcripts and video recordings of Messrs. Knight's, Barnicle's and Gifford's depositions. Doc. No. 244-1 at 11-12, 15-16, 22.
The notices for Messrs. Knight's, Barnicle's and Gifford's depositions indicate they would be videotaped. Doc. No. 245-1 at 3-4, 7-11. There is no evidence Defendant objected to videotaping any of those depositions. Plaintiff maintains it was necessary to videotape the depositions because the witnesses - all of whom were employed by Defendant - resided outside of Florida, and it was unclear whether they would voluntarily appear at trial. Doc. No. 242 at 4. Ultimately, Messrs. Knight and Barnicle testified at trial, while Mr. Gifford's video deposition was played at trial. Doc. Nos. 223; 227. On this record, the undersigned finds Plaintiff has sufficiently demonstrated the video depositions were necessarily obtained for use in this case. See Castillo v. Roche Labs., Inc., 2012 WL 381200, at *4 (S.D. Fla. Feb. 6, 2012) (awarding costs for videotaping the deposition of a witness who was outside the court's subpoena power, no longer employed by the defendant, and was critical to plaintiff's case); Scottsdale Ins. Co. v. Wave Techs. Commc'ns, Inc., Case No. 8:07-cv-1329-T-30MAP, 2012 WL 750317, at *2 (M.D. Fla. Mar. 7, 2012) (awarding costs for videotaping the deposition of a witness who was outside the court's subpoena power, would not appear at trial, and whose video deposition was shown at trial); U.S. ex rel. Gillespie v. Kaplan Univ., 2015 WL 11181725, at *3-4 (S.D. Fla. Dec. 1, 2015) (awarding costs for videotaping the depositions of witnesses who were outside the court's subpoena power). Accordingly, the undersigned finds Plaintiff is entitled to recover the costs for obtaining the transcripts and video recordings of Messrs. Knight's, Barnicle's and Gifford's depositions.
Plaintiff also seeks costs for synchronizing the video depositions, and shipping the depositions. Doc. Nos. 242 at 5; 244-1 at 11-12, 15-22. Defendant argues these costs are outside the scope of § 1920, and thus Plaintiff is not entitled recover these costs. Doc. No. 255 at 5-6. The costs for synchronizing the video depositions and shipping the depositions are outside the scope of § 1920. See Watson v. Lake Cnty., 492 F. App'x 991, 997 (11th Cir. 2012) (finding the district court abused its discretion by awarding shipping costs for depositions); Awwad v. Largo Med. Ctr., Inc., Case No. 8:11-cv-1638-T-24TBM, 2013 WL 6198856, at *4 (M.D. Fla. Nov. 27, 2013) (denying recovery of costs for synchronizing video depositions and shipping depositions). Accordingly, the undersigned finds Plaintiff's request for costs should be reduced by $2,256.00.
This figure represents the following costs: a total of $810.00 for synchronizing Mr. Knight's video deposition (Doc. No. 244-1 at 11-12); a total of $35.00 for shipping Mr. Knight's deposition (Id. at 12); a total of $510.00 for synchronizing Mr. Barnicle's video deposition (Id. at 15-16); a total of $55.00 for shipping Mr. Barnicle's deposition (Id.); a total of $31.00 for shipping Mr. Russell's depositions (Id. at 17, 19); a total of $15.50 for shipping Mr. Rosenblit's deposition (Id. at 18); a total of $32.50 for shipping Mr. Finneran's deposition (Id. at 20); a total of $27.00 for shipping Mr. Cunningham's deposition (Id. at 21); a total of $720.00 for synchronizing Mr. Gifford's video deposition (Id. at 22); and a total of $20.00 for shipping Mr. Gifford's deposition (Id.).
2. Transcript of June 5, 2015 Hearing.
Plaintiff seek costs for obtaining a transcript of the June 5, 2015 hearing on a motion to compel. Doc. Nos. 242 at 5-7; 244-1 at 10. Plaintiff maintains it was necessary to obtain the hearing transcript for several reasons, including, but not limited to, the parties' reliance on the transcript in arguing and responding to several motions. Doc. No. 242 at 5-7. In response, Defendant essentially argues Plaintiff has not demonstrated it was necessary to obtain the hearing transcript. Doc. No. 255 at 6-8. A number of courts in this District have concluded hearing transcripts are taxable when reasonably obtained in preparation for additional argument and/or motion practice. Hughes ex rel. J.B. v. Judd, Case No. 8:12-cv-568-T-23MAP, 2015 WL 5135538, at *4 (M.D. Fla. July 17, 2015) (citing authority); see EEOC v. St. Joseph's Hosp., Inc., Case No. 8:13-cv-2723-T-30TGW, 2015 WL 7008145, at *2 (M.D. Fla. Oct. 21, 2015) (finding plaintiff may recover the cost of the hearing transcript it relied on in preparing an objection to a report and recommendation and a post-trial motion) report and recommendation adopted, 2015 WL 6956560 (M.D. Fla. Nov. 10, 2015). The parties each relied on the hearing transcript in arguing and responding to various motions. Doc. Nos. 97; 131; 136; 198. Accordingly, the undersigned finds Plaintiff is entitled recover $86.40 in costs for obtaining the hearing transcript.
3. Trial Transcripts.
Plaintiff seeks costs for obtaining daily trial transcripts. Doc. Nos. 242 at 7-8; 244-1 at 23. Plaintiff represents it used the trial transcripts for a number of reasons during trial, including, but not limited to, preparing for cross-examination, rebuttal, and closing argument. Doc. No. 242 at 7. Defendant essentially argues Plaintiff obtained the daily trial transcripts for its own convenience, and thus it is not entitled to recover the costs for those transcripts. Doc. No. 255 at 8-10.
The costs of daily trial transcripts should not be allowed as a matter of course. Maris, 302 F.3d at 1225. In determining whether to allow such costs, courts in this Circuit routinely consider the following nonexclusive factors: 1) the complexity of the trial; 2) the length of the trial; 3) the number of counsel present at trial for the prevailing party; 4) whether the parties were required to submit briefs and proposed findings to the court; and 5) the filing of post-trial motions, such as motions for judgment notwithstanding the verdict. See, e.g., Kearney v. Auto-Owners Ins. Co., Case No. 8:06-cv-595-T-24TGW, 2010 WL 1856060, at *4 (M.D. Fla. May 10, 2010); Scottsdale, 2012 WL 750317, at *2-3; Massey, Inc. v. Moe's Southwest Grill, LLC, 2015 WL 5794175, at *3 (N.D. Ga. Oct. 5, 2015).
This breach of contract action, while contentious, was not complex. The trial was relatively short, lasting only six (6) days. Three (3) attorneys were present on Plaintiff's behalf throughout the trial. Doc. Nos. 222; 223; 224; 227; 228; 233. Therefore, Plaintiff had sufficient resources at trial to take detailed notes for cross-examination, rebuttal, and closing argument. Finally, the parties were not required to submit briefs or proposed findings to the Court, nor did any party file post-trial motions requiring citation to the trial transcript. In light of the foregoing, the undersigned finds it was unnecessary to obtain daily trial transcripts. See Kearney, 2010 WL 1856060, at *4 (finding defendant was not entitled to recover costs for trial transcripts where the trial lasted eight (8) days and the issues were not complex); cf. Denton v. DaimlerChrysler Corp., 645 F. Supp. 2d 1215, 1228 (N.D. Ga. 2009) (awarding costs for trial transcript as necessary to respond to opposing party's post-trial motions). Accordingly, the undersigned finds Plaintiff's request for costs should be reduced by $1,377.60.
E. Fees for Witness's Travel Expenses.
Plaintiff seeks the travel expenses of a single witness, James Cunningham. Doc. Nos. 242 at 8-9; 244 at 1; 244-1 at 25-28. The expenses stem from Mr. Cunningham's taxi ride to the Birmingham, Alabama airport and flight to Orlando, Florida. Id. Defendant does not object to these expenses. Doc. No. 255 at 11. The expenses associated with Mr. Cunningham's travel to Orlando, Florida to testify at trial are recoverable and reasonable. 28 U.S.C. § 1920(3); 28 U.S.C. § 1821(c)(1), (4). Accordingly, the undersigned finds Plaintiff is entitled to recover $769.02 in costs for Mr. Cunningham's travel expenses.
F. Fees for Copying.
Plaintiff requests costs for copies of exhibits and exhibit labels, use of a trial presentation service, and electronic discovery. Doc. Nos. 242 at 9-14; 244-1 at 30-98. As discussed below, the undersigned finds Plaintiff is only entitled to recover a portion of the copying and exemplification costs requested.
1. Exhibits and Exhibit Labels.
Plaintiff seeks costs for copying various trial exhibits and exhibit labels. Doc. Nos. 242 at 9-10; 244-1 at 79-80, 94-95, 98. The chart below details the purpose of the copies, the number of copies, and the cost of the copies at issue:
| Purpose of Copies | Quantity | Cost |
|---|---|---|
| Trial Exhibits - Depositions | 14,994 | $1,277.49 |
| Exhibit Labels | 85 | $33.87 |
| New Trial Exhibits | 8,949 | $1,048.38 |
| New Exhibit Labels | 70 | $27.26 |
| Unknown | 1,799 | $153.27 |
As for the remaining costs, Plaintiff maintains it was necessary to make copies of exhibit labels to comply with Local Rule 3.07. Doc. No. 242 at 9. In addition, Plaintiff maintains it was necessary to make new copies of certain trial exhibits and exhibit labels in order to comply with the Court's February 19, 2016 Civil Pretrial Order. Doc. No. 242 at 9-10 (citing Doc. No. 201). However, Plaintiff provides no explanation why it is seeking costs for 1,799 copies made on or about February 4, 2016. See Doc. Nos. 242 at 9-10; 244-1 at 94. Defendant essentially argues the foregoing costs are not recoverable under § 1920(4). Doc. No. 255 at 12-14.
"In advance of trial and, when reasonable, in advance of evidentiary hearing, counsel for each party in any case shall obtain from the Clerk (or from an outside source in the format utilized by the Clerk or in a format approved by the presiding judge), tabs or labels. These tabs or labels shall be used for the marking and identification of each exhibit proposed to be offered in evidence or otherwise tendered to any witness during trial and evidentiary hearing and for the marking and identification of photographs and reductions proposed to be offered with exhibits in accordance with Rule 5.04. Counsel shall identify a photograph or reduction offered with an exhibit with the number identifying the exhibit." Local Rule 3.07(a).
Plaintiff is not entitled to recover any of the contested copying costs. First, Plaintiff has not sufficiently demonstrated it was necessary to make new copies of nearly 9,000 pages of exhibits as a result of the Civil Pretrial Order. Plaintiff claims the new copies were necessary in order to add "individual page numbers" to the exhibits. Doc. No. 242 at 9-10 (citing Doc. No. 201). However, Plaintiff does not explain, nor is it clear, why it was necessary to make new copies to paginate the exhibits, as opposed to utilizing some other more cost effective means of paginating the exhibits, such as bates stamping. Therefore, the undersigned finds Plaintiff is not entitled to recover the costs for the new copies. Second, the costs for making copies of exhibit labels are not recoverable under § 1920(4), especially since a majority of those costs consist of fees for cutting the copies into individual labels. Doc. No. 244-1 at 79, 95; see Durden v. Citicorp Trust Bank, FSB, Case No. 3:07-cv-974-J-34JRK, 2010 WL 2105921, at *4 (M.D. Fla. Apr. 26, 2010) (excluding labeling costs). Third, Plaintiff is not entitled to recover costs for 1,799 copies made on or about February 4, 2016, because it has failed to explain why those copies were necessarily obtained for use in the case. See Cullens v. Ga. Dep't of Transp., 29 F.3d 1489, 1494 (11th Cir. 1994) (finding district court did not abuse its discretion in denying copying costs because plaintiff failed to present evidence indicating why the copies were necessary). Accordingly, the undersigned finds Plaintiff's request for costs should be reduced by $1,262.78.
2. Trail Presentation Service.
Plaintiff seeks costs stemming from its use of an outside vendor that provided technical support during Plaintiff's presentation of its case. Doc. Nos. 242 at 10-11; 244-1 at 96-97. Plaintiff essentially argues this cost was necessarily incurred to present its case in the most efficient manner using the courtroom technology. Doc. No. 242 at 10. Plaintiff acknowledges it has only discovered one case where such costs were awarded under § 1920(4). Id. at 10-11 (citing Lockheed Martin Idaho Techs. Co. v. Lockheed Martin Advanced Envtl. Sys., Inc., 2006 WL 2095876, at *2 (D. Idaho July 27, 2006)). Defendant argues Plaintiff is not entitled to recover such costs under § 1920(4). Doc. No. 255 at 14-16.
Plaintiff is not entitled to recover the costs stemming from its use of an outside vendor to provided technical support during the presentation of its case. First, the undersigned finds the Lockheed decision unpersuasive, because the court cited no authority concluding such costs were permitted under § 1920(4). Lockheed, 2006 WL 2095876, at *2. Second, the undersigned finds, as have other courts in this Circuit, that costs stemming from the use of an outside vendor to provided technical support during the presentation of a party's case falls outside the narrow scope of § 1920(4). U.S. ex rel Christiansen v. Everglades Coll., Inc., 2014 WL 11531631, at *5-6 (S.D. Fla. Nov. 13, 2014) report and recommendation adopted, 2014 WL 11531632 (S.D. Fla. Dec. 4, 2014) (citing Akanthos Capital Mgmt., LLC v. CompuCredit Holdings Corp., 2 F. Supp. 3d 1306, 1318 (N.D. Ga., Mar. 7, 2014)). Accordingly, the undersigned finds Plaintiff's request for costs should be reduced by $9,942.91.
3. Electronic Discovery.
Plaintiff seeks costs for conducting electronic discovery ("e-discovery"). Doc. Nos. 242 at 11-14; 244-1 at 30-78, 81-93. Plaintiff represents the case involved a large amount of electronic document production. Doc. No. 242 at 11. As a result, Plaintiff employed an outside vendor - Lexbe LC - to create and manage an electronic litigation database, which essentially collected, organized, and created a searchable database of the documents produced during discovery in this and another ongoing case, Local Access, LLC v. Peerless Network, Inc., Case No. 6:14-cv-399-Orl-40TBS (M.D. Fla.). Doc. No. 242 at 13; 244-1 at 30-78, 81-93. Plaintiff acknowledges most courts deny such costs, but cites several cases in which courts have awarded such costs. Id. at 13-14 (citing Lockheed, 2006 WL 2095876, at *2; Chenault v. Dorel Indus. Inc., 2010 WL 3064007, at *4 (W.D. Tex. Aug. 2, 2010); In re Aspartame Antitrust Litig., 817 F. Supp. 2d 608, 615 (E.D. Pa. 2011); Perfect 10, Inc. v. Giganews, Inc., 2015 WL 1746484, at *28 (C.D. Cal. Mar. 24, 2015)). In light of the foregoing cases, Plaintiff maintains the costs for e-discovery are recoverable under § 1920(4). Id.
The following entries provide a glimpse of the type of activities Lexbe conducted on Plaintiff's behalf:
Defendant maintains Plaintiff is not entitled to recover the costs of e-discovery for two (2) principle reasons. Doc. No. 255 at 16-20. First, Defendant argues the costs of e-discovery are not recoverable under § 1920(4). Id. at 17-19 (citing Akanthos, 2 F. Supp. 3d 1306; Procaps S.A. v. Patheon Inc., 2016 WL 411017 (S.D. Fla. Feb. 2, 2016)). Second, Defendant argues Plaintiff is not entitled to recover costs stemming from the Local Access case. Id. at 19. Accordingly, Defendant requests the Court deny Plaintiff's request to recover e-discovery costs. Id. at 20.
The Eleventh Circuit has not determined whether a party may recover the costs stemming from e-discovery under § 1920(4). The Federal Circuit, applying Eleventh Circuit case law, and a number of district courts in this Circuit have considered the issue, and have essentially concluded that while the costs of creating electronic copies of documents are generally recoverable under § 1920(4), the costs of creating and managing a dynamic, indexed and searchable databased that allows counsel to search for and within the documents are not recoverable under § 1920(4). See, e.g., CBT Flint Partners, LLC v. Return Path, Inc., 737 F.3d 1320, 1328-33 (Fed. Cir. 2013) (finding the costs of making electronic copies may be recoverable under § 1920(4), but many of the costs associated with creating, maintaining, and utilizing the database where the documents are stored are not recoverable); Akanthos, 2 F. Supp. 3d at 1318 (finding the costs of digitizing paper documents and converting ESI from a native format may be taxable under § 1920(4), but not "the cost of creating a dynamic, indexed and searchable database," which "is nothing more than an efficient, convenient, modern-day version of paper document review."); Christiansen, 2014 WL 11531631, at *5 (finding the costs of creating and maintaining a litigation database are not recoverable under § 1920(4)); Procaps, 2016 WL 411017, at *13 (finding the cost of using optical character recognition to search electronic documents is not recoverable under § 1920(4)). The undersigned finds these cases persuasive, because they are consistent with the limited scope of § 1920(4).
Plaintiff is not entitled to recover any e-discovery costs for three (3) principle reasons. First, Plaintiff's request for such costs includes costs outside the scope of making copies of paper and electronic documents. Specifically, Plaintiff seeks a significant amount of costs unrelated to making copies, such as costs for creating and maintaining the database, organizing the database, and searching for and within documents stored in the database. Doc. No. 244-1 at 30-78, 81-93. These costs are not recoverable under § 1920(4). See, e.g., CBT Flint Partners, 737 F.3d at 1330-32; Akanthos, 2 F. Supp. 3d at 1318; Christiansen, 2014 WL 11531631, at *5; Procaps, 2016 WL 411017, at *13. Second, the undersigned is not persuaded by any of the cases Plaintiff relies on in support of its request to recover its e-discovery costs, because they run contrary to the authority in this Circuit and, in some cases, are distinguishable from this case. Lockheed, 2006 WL 2095876, at *2 (awarding the costs for a litigation database under § 1920(4) due to the "extreme complexity" of the case and "the millions of documents that had to be organized"); Chenault, 2010 WL 3064007, at *4 (awarding e-discovery costs primarily due to the cost effectiveness of producing electronic copies, as opposed to paper copies, of the documents); In re Aspartame Antitrust Litig., 817 F. Supp. 2d at 615 (awarding e-discovery costs primarily due to the complexity of the case); Perfect 10, 2015 WL 1746484, at *28 (awarding e-discovery costs under the Copyright Act, as opposed to § 1920). Third, Plaintiff's request includes costs associated with the Local Access case. Doc. No. 244-1 at 30-78, 81-93. Plaintiff is not entitled to recover costs stemming from that separate and ongoing case. Finally, the undersigned is mindful Plaintiff's request for e-discovery costs may include costs for making and/or obtaining copies of documents, which are generally recoverable under § 1920(4). However, Plaintiff has made no effort to identify those costs. Therefore, the undersigned finds Plaintiff is not entitled to recover any e- discovery costs. Accordingly, the undersigned finds Plaintiff's request for costs should be reduced by $87,464.50. IV. CONCLUSION.
Accordingly, it is RECOMMENDED the Motion (Doc. No. 242) be GRANTED in part and DENIED in part as follows:
1. Plaintiff be awarded $15,054.46 in costs; and
2. Otherwise, the Motion (Doc. No. 242) be DENIED.
NOTICE TO PARTIES
A party has fourteen days from this date to file written objections to the Report and Recommendation's factual findings and legal conclusions. A party's failure to file written objections waives that party's right to challenge on appeal any unobjected-to factual finding or legal conclusion the district judge adopts from the Report and Recommendation. See 11th Cir. R. 3-1.
Recommended in Orlando, Florida on August 31, 2016.
/s/_________
GREGORY J. KELLY
UNITED STATES MAGISTRATE JUDGE Copies furnished to: Presiding District Judge
Counsel of Record
Unrepresented Party
Courtroom Deputy
| Date | Activity | Cost |
|---|---|---|
| 6/2/15 | Review and revise letter to court documenting productionfrom Lexbe. Conference with Jim Finneran regardingsame. Correspondence to Jim Finneran and David Sellmanregarding same. Brief Karsten Weber regarding possibleexpert testimony in case. | $687.50 |
| 6/2/15 | Phone conference with Jim Finneran; At Jim Finneran'srequest, marked all docs that came from his FTP server on5/29 as responsive, confidential, and custom designation.Created a production in each of the 2 cases, BTC v.Peerless and BTC & LA v. Peerless, added all responsivedocs that had not yet been produced, ensured all docs weremarked confidential and marked to receive a customdesignation for confidential; set production parameters tomatch previous productions, ran both productions, eachtitled 'Production 06-02-2015 (Confidential Stamp).'; Atrequest of Jim Finneran, documented steps and contents ofproduction titled 'Production 05-18-2015 (ConfidentialStamp)' in letter format to David Sellman. | $675.00 |