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awarding e-discovery costs primarily due to the complexity of the case
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Civil Action No. 2:06–CV–1732–LDD.
2011-10-5
In re ASPARTAME ANTITRUST LITIGATION.
Dianne M. Nast, Roda & Nast, PC, Lancaster, PA, W. Joseph Bruckner, Heidi M. Silton, Lockridge Grindal Nauen PLLP, Daniel E. Gustafson, Gustafson Gluek PLLC, Minneapolis, MN, Michael L. Roberts, Roberts Law Firm, Little Rock, AR, Donald L. Perelman, Roberta D. Liebenberg, Fine, Kaplan and Black, Philadelphia, PA, Michael D. Hausfeld, Hausfeld LLP, Washington, DC, for Plaintiff. Patricia M. McDermott, Michael Lazerwitz, Christopher T. Leahy, Cleary Gottlieb Steen & Hamilton LLP, Washington, DC, Britt M. Miller, Mayer Brown LLP, Chicago, IL, James M. Becker, Buchanan Ingersoll & Rooney PC, Carolyn Hazard Feeney, Dechert LLP, Mark C. Cawley Saul Ewing, LLP, Philadelphia, PA, Reid Kress Weisbord, Rutgers Law School Legal Clinic, Rutgers Law School, Newark, NJ, Defendants.
Dianne M. Nast, Roda & Nast, PC, Lancaster, PA, W. Joseph Bruckner, Heidi M. Silton, Lockridge Grindal Nauen PLLP, Daniel E. Gustafson, Gustafson Gluek PLLC, Minneapolis, MN, Michael L. Roberts, Roberts Law Firm, Little Rock, AR, Donald L. Perelman, Roberta D. Liebenberg, Fine, Kaplan and Black, Philadelphia, PA, Michael D. Hausfeld, Hausfeld LLP, Washington, DC, for Plaintiff. Patricia M. McDermott, Michael Lazerwitz, Christopher T. Leahy, Cleary Gottlieb Steen & Hamilton LLP, Washington, DC, Britt M. Miller, Mayer Brown LLP, Chicago, IL, James M. Becker, Buchanan Ingersoll & Rooney PC, Carolyn Hazard Feeney, Dechert LLP, Mark C. Cawley Saul Ewing, LLP, Philadelphia, PA, Reid Kress Weisbord, Rutgers Law School Legal Clinic, Rutgers Law School, Newark, NJ, Defendants.
ORDER
LEGROME D. DAVIS, District Judge.
AND NOW, this 5th day of October 2011, upon consideration of Plaintiffs' Motion on Defendants' Bills of Cost Pursuant to Fed.R.Civ.P. 54(d) (Doc. No. 210), Defendants' Joint Partial Opposition to Plaintiffs' Motion on Defendants' Bills of Costs Under Fed.R.Civ.P. 54(d) (Doc. No. 211 and 212), Plaintiffs' Reply Memorandum in Support of Motion on Defendants' Bill of Costs Pursuant to Fed.R.Civ.P. 54(d) (Doc. No. 216), and Defendants' Joint Surreply in Support of Defendants' Bills of Costs Under Fed.R.Civ.P. 54(d) (Doc. No. 217), it is hereby ORDERED that the Motion is DENIED in part and GRANTED in part.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On April 25, 2006, various plaintiffs, including Nog, Inc. and Sorbee International Ltd., filed separate complaints on behalf of a class of all persons and entities that purchased Aspartame, an artificial sweetener, directly from defendants in the United States. (Doc. No. 1). Plaintiffs alleged that Defendants had engaged in a worldwide, horizontal antitrust conspiracy with the purpose of allocating the market for Aspartame and setting an artificially high price for the sweetener in violation of Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1. The Court ordered these complaints consolidated.
On August 11, 2008, this Court issued an Order granting Certain Defendants' Motion for Summary Judgment against Plaintiffs Nog and Sorbee only because plaintiffs' claims were time-barred by the four-year statute of limitations, which was not tolled by the fraudulent concealment doctrine. (Doc. No. 178). The judgment was affirmed by the United States Court of Appeals for the Third Circuit on Feb. 22, 2011. In re Aspartame Antitrust Litig., 416 Fed.Appx. 208 (3d Cir.2011). On July 26, 2011, the Clerk of Court granted costs in the amount of $192,373.87 for the Holland defendants (“Holland Sweetener”), $165,120.73 for the Ajinomoto defendants (“Ajinomoto”), and $215,540.53 for the NutraSweet Company (“NutraSweet”). (Doc. No. 206 at 11, 20, 30). Plaintiffs now bring this motion asking this to Court deny or reduce defendants' bill of costs.
The Holland defendants are Holland Sweetener Company VOF and Holland Sweetener North America, Inc.
The Ajinomoto defendants are Ajinomoto Company, Inc.; Ajinomoto USA, Inc.; Ajinomoto Euro–Aspartame S.A.; Ajinomoto Switzerland A.G.; and Ajinomoto Food Ingredients LLC.
II. DISCUSSION
Federal Rule of Civil Procedure 54(d)(1) provides that “[u]nless a federal statute, these rules or a court order provides otherwise, costs—other than attorney's fees—should be allowed to the prevailing party.” A court may tax “[f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case” and “fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case,” as well as other specifically enumerated fees. 28 U.S.C. § 1920(2) and (4). A court can exercise its discretion in awarding costs within the categories set out in the statute. In re Paoli R.R. Yard PCB Litig., 221 F.3d 449, 458 (3d Cir.2000). A district court reviews a bill of costs de novo. Id. at 461. For purposes of convenience, we take as our starting point the values set forth by plaintiffs in their Motion on Defendants' Bills of Cost Pursuant to Fed.R.Civ.P. 54(d) (Doc. No. 210), which categorizes the costs requested by defendants. We summarize the costs awarded in the table at the end of this document.
A. E–Discovery
The largest portion of the disputed costs are costs associated with creating a litigation database, processing and hosting electronic data, conducting keyword and privilege screens on the documents in the database, making documents OCR searchable, extracting metadata, and related activities. Defendants request these costs under 28 U.S.C. § 1920(4), which allows a clerk to tax “[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case.” Taxing e-discovery is a new area of law where courts have diverged in their approaches. Compare Fells v. Virginia Dept. of Transp., 605 F.Supp.2d 740, 743 (E.D.Va.2009) (refusing to tax “electronic records initial processing, Metadata extraction, [and] file conversion”) (internal quotation marks omitted) and Klayman v. Freedom's Watch, Inc., No. 07–22433, 2008 WL 5111293, at *2 (S.D.Fla. Dec. 4, 2008) (refusing to tax the cost of hiring “experts at a huge hourly cost to search for and retrieve discoverable electronic documents”) with Race Tires America, Inc. v. Hoosier Racing Tire Corp., No. 07–1294, 2011 WL 1748620, at *8–10, 2011 U.S. Dist. LEXIS 48847, at *26–30 (W.D.Pa. May 6, 2011) (awarding costs for creating a litigation database, imaging hard drivers, scanning documents, processing and indexing data, extracting metadata, and enabling documents to be OCR searchable) and United States Bankr. v. Dorel Indus., Case No. A–08–CA–354–SS, 2010 WL 3064007, at *3–4, 2010 U.S. Dist. LEXIS 78096, at *11–14 (W.D.Tex. Aug. 2, 2010) (granting costs under § 1920(3) for the creation of an electronic database) and Lockheed Martin Idaho Techs. Co. v. Lockheed Martin Advanced Envtl. Sys., No. CV–98–316–E–BLW, 2006 WL 2095876, at *2, 2006 U.S. Dist. LEXIS 52242, at *8 (D.Idaho July 27, 2006) (awarding costs under § 1920(4) for a litigation database that “was necessary due to the extreme complexity of this case and the millions of documents that had to be organized”).
The volume of discovery in this case was staggering. Defendant Ajinomoto was required to collect documents from over twenty-eight different document custodians, including documents relating to defendants' foreign activities and affiliates, that totaled 87.73 gigabytes of data—the equivalent to copying 4.4 to 6.1 million pages of documents. (Doc. No. 195 at 12). Ajinomoto spent $135,696.00 processing this data, which amounts to 2 or 3 cents per page. (Id.). Defendant NutraSweet collected over 1.05 terabytes of potentially responsive electronic documents—over 75 million pages—and 262,000 pages of hard- copy documents. (Doc. No. 198 at 7). Defendant Holland Sweetener amassed over 366 gigabytes of potentially responsive documents that amounted to several million pages. (Doc. No. 197 at 7). Because of this high volume, the parties agreed to electronic discovery after extensive negotiations. (Doc. No. 195 at 11). Their agreement was documented in a detailed Order for Discovery of Electronic Documents, which specifically provided for implementing cost-effective discovery through the use of keyword searches and de-duplication tools. (Doc. No. 108 at 5).
The court is persuaded that in cases of this complexity, e-discovery saves costs overall by allowing discovery to be conducted in an efficient and cost-effective manner. We agree with defendants that electronic discovery allows parties to “save costs associated with manually producing, handling, storing, and delivering thousands (and often millions) of pages of hard-copy documents.” (Doc. 212 at 11). See United States Bankr.v. Dorel Indus., No. A–08–CA–354, 2010 WL 3064007, at *4, 2010 U.S. Dist. LEXIS 78096, at *13–14 (W.D.Tex. Aug. 2, 2010) (holding that the creation of an electronic database in lieu of “printing out thousands of pages of documents which would have otherwise been required in response to Plaintiffs' discovery request” was an appropriate cost). In this case, defendants' use of third parties vendors to conduct keyword searches and remove duplicate documents allowed Holland Sweetener and NutraSweet to reduce their pool of potentially responsive documents by 87% and 38.5% respectively, at significant cost savings. (Doc. 197 at 12; Doc. 198 at 7). We therefore award costs for the creation of a litigation database, storage of data, imaging hard drives, keyword searches, deduplication, data extraction and processing. Because a privilege screen is simply a keyword search for potentially privileged documents, we award that cost as well. (Doc. No. 28 at 27). In addition, we award costs associated with hosting data that accrued after defendants produced documents to plaintiffs because, as the plaintiffs themselves acknowledged earlier in the proceedings, discovery was ongoing in this case up until summary judgment was issued. (Doc. No. 212 at 15 (“Discovery in this case had not yet closed when the Court granted Defendants' motion for summary judgment. All discovery dates had merely been postponed at the time of this Court's ruling and discovery was very much on-going.”)). We further award costs associated with the technical support necessary to complete these tasks, as other courts have done. See Race, 2011 WL 1748620, at *10, 2011 U.S. Dist. LEXIS 48847, at *32–33 (awarding costs for “perform[ing] all tasks associated with putting electronic documents in the position to be produced,” including hourly charges for technicians).
We set out the specific amounts awarded to each defendant in the chart that appears at the end of this document.
We also side with the many courts that have taxed costs for optical character recognition (OCR), the process of making fixed images such as PDFs and TIFFs searchable. See, e.g., Race Tires Am., Inc. v. Hoosier Racing Tire Corp., No. 07–1294, 2011 WL 1748620, at *9–10, 2011 U.S. Dist. LEXIS 48847, at *28–31 (W.D.Pa. May 6, 2011); Comrie v. IPSCO Inc., No. 08 CV 3060, 2010 WL 5014380, at *3–4, 2010 U.S. Dist. LEXIS 128217, at *9–11 (N.D.Ill. Dec. 1, 2010); Business Sys. Eng'g, Inc. v. IBM, 249 F.R.D. 313, 315 (N.D.Ill.2008). Searchable documents are essential in a case of this complexity and benefit all parties.
We additionally grant Holland Sweetener's $26,244.36 cost for “Production Processing Fee–Load File.” This cost covers the creation of load files that allow documents saved as TIFFs to be loaded onto review platforms. (Doc. No. 205–1 at ¶¶ 11–12). Plaintiffs themselves requested documents to be accompanied by load files, and we will accordingly tax them with this cost. (Id.). We additionally award NutraSweet's $1200.00 request for the costs of creating Concordance load files. Plaintiffs argue that because they never used the document management program Concordance, the charge only benefitted NutraSweet. (Doc. No. 210 at 35). However, it was plaintiffs who requested that load files accompany documents produced in discovery. (Doc. No. 108 at 6). NutraSweet should not be penalized for picking one particular type of load file that is no more costly to produce than any other type of file. (Doc. No. 205–5 at ¶ 6).
We draw the line, however, at the sophisticated e-discovery program Attenex Document Mapper. The Ajinomoto defendants describe Document Mapper as “a document review tool with visual clustering of a document collection based on concepts extracted from those documents.” (Doc. No. 205–3). This service, while undoubtedly helpful, exceeds necessary keyword search and filtering functions. Rather, it is advanced technology that falls squarely within the realm of costs that are not necessary for litigation but rather are acquired for the convenience of counsel. We accordingly deny Ajinomoto's $22,633.00 request for the Document Mapper service. For the same reasons, we will not tax plaintiffs with the $5,449.00 cost of a concept based review platform and document analytics, which defendants characterize as “related applications used to efficiently and accurately separate responsive and nonresponsive documents.” ( Id.).
The Court will also deny the Tech Usage fees associated with using Document Mapper and its related applications. According to defendants, “[T]he $21,120 in Tech Usage Fees was a related cost for access to these tools.” (Doc. No. 205–3 at 6). However, this Court has carefully reviewed the invoices and concludes that Tech Usage is a general fee that covers the use of not only Document Mapper but also general data hosting and the program Attenex Workbench, both of which are taxable. In reaching this conclusion, we note that Tech Hosting fees are incurred every month, even in months where Document Mapper is not used. ( See, e.g., Doc. 195–1 at 34). We therefore reduce defendants' recovery Tech Usage by $11,920.00, the sum of Tech Usage fees for the months in which Document Mapper was used. We award Ajinomoto a total of $9,200.00 in Tech Usage fees.
Attenex Workbench is used for extracting and decrypting data, functions that are necessary for litigation. (Doc. No. 205–3 at ¶ 11). We accordingly grant the cost for Attenex Workbench.
Although the Tech Usage fees in months where Document Mapper was used also covers the cost of accessing other services, because Defendants have not provided a breakdown of the tech usage fees, we deny the entire cost of Tech Usage for those months.
Plaintiffs specifically object to the costs of electronic data recovery and tape restoration, arguing that such work is typically done by an attorney or paralegal. (Doc. No. 210 at 19). That is not the case. Electronic data recovery is the process of opening and restoring password-protected and corrupted files. (Doc. No. 205–3 at ¶ 18). Tape restoration is the process of converting archived documents into a usable format. (Id. at ¶ 19). These are technical processes that would not be done by an attorney. Other courts have awarded such costs and we will do the same. See, e.g., Tibble v. Edison Int'l, No. 07–5359, 2011 WL 3759927, at *7–8, 2011 U.S. Dist. LEXIS 94995, at *22–23 (C.D.Cal. Aug. 22, 2011) (awarding costs for electronic data recovery); Promote Innovation LLC v. Roche Diagnostics Corp., No. 10–cv–964, 2011 WL 3490005, at *1–2, 2011 U.S. Dist. LEXIS 87995, at *3–5 (S.D.Ind. Aug. 9, 2011) (awarding costs to repair corrupted documents).
B. Depositions
28 U.S.C. § 1920(2) allows the taxation of “[f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case.” However, defendants are not permitted to recover the costs of both transcripts and videotapes of depositions. See Stevens v. D.M. Bowman, Inc., No. 07–2603, 2009 WL 117847, at *4, 2009 U.S. Dist. LEXIS 3065, at *12 (E.D.Pa. Jan. 15, 2009) (“[T]he costs of a videotape or a deposition transcript may be taxed, but not both.”); Wesley v. Dombrowski, No. 03–4137, 2008 WL 2609720, at *2–3, 2008 U.S. Dist. LEXIS 49544, at *10 (E.D.Pa. June 25, 2008) (same). A court will allow costs for a videotape but not a transcript if the videotape was necessarily obtained for use in the trial. Herbst v. General Acc. Ins. Co., No. 97–8085, 2000 WL 1185517, at *2, 2000 U.S. Dist. LEXIS 11952, at *5 (E.D.Pa. Aug. 21, 2000). The test is not whether the videotape was actually used at trial, but merely whether the videotape appeared “reasonably necessary” to defendants at the time of the deposition. Stevens, 2009 WL 117847, at *3, 2009 U.S. Dist. LEXIS 3065, at *10.
Here, the Ajinomoto defendants assert that they videotaped Bruce Ritenberg's deposition believing they may need to use it at trial given his age at the time of the deposition. (Doc. No. 205 at 15). Accordingly, the Court will allow this cost and deny the cost of the transcript. In contrast, NutraSweet has not made the requisite showing that videotaping the deposition of David Waxler was reasonably necessary. (Doc. No. 205 at 22). The Court will permit NutraSweet to recover the cost of the transcript only and will accordingly deduct $880.00 from NutraSweet's costs.
A party may not recover the shipping and handling costs associated with depositions. Neena S. v. Sch. Dist., No. 05–5404, 2009 WL 2245066, at *10–11, 2009 U.S. Dist. LEXIS 65185, at *32 (E.D.Pa. July 27, 2009) (stating that the Third Circuit “disallows” costs for postage and courier fees) (quoting In re Penn Cent. Transp. Co., 630 F.2d 183, 191 (3d Cir.1980)); Wesley v. Dombrowski, No. 05–5404, 2008 U.S. Dist. LEXIS 49544, at *10–11 (E.D.Pa. June 25, 2008) (refusing to grant costs for shipping and handling). A party may, however, recover the costs of copying exhibits for depositions that were necessarily obtained for use in the case as well as a the cost of a rough draft of the deposition. See 168th & Dodge, LP v. Rave Reviews Cinemas, LLC, 501 F.3d 945, 957 (8th Cir.2007) (affirming the district court's granting of costs for rough drafts of depositions); Service Employees Intern. Union v. Rosselli, No. C 09–00404, 2010 WL 4502176, at *3–4, 2010 U.S. Dist. LEXIS 122202, at *12–13 (N.D.Cal. Nov. 1, 2010) (allowing “rough disk” fees for a deposition); Gallagher v. Gallagher, No. 07–4196, 2010 WL 2610192, at *3, 2010 U.S. Dist. LEXIS 64185, at *8 (N.D.Ill. June 24, 2010) (granting costs for photocopying deposition exhibits). We will accordingly allow NutraSweet to recover $1492.00 for the deposition of John Beyer, a sum that includes the costs of exhibits and a rough draft and omits shipping and handling and the request for a late fee that has been withdrawn by NutraSweet. (Doc. No. 205 at 27, Doc. No. 182–2 at 4). Similarly, because we award the cost of exhibits and rough drafts, Holland Sweetener may recover all the costs it has requested for the depositions of Bruce Ritenberg, David Waxler, and John Beyer.
Holland Sweetener did not request costs for shipping and handling.
C. Bates Labeling and Confidentiality Labeling
A majority of courts have held that the cost of bates labeling is not recoverable under § 1920. See, e.g., Powell v. Home Depot, U.S.A., Inc., No. 07–80435, 2010 WL 4116488, at *16, 2010 U.S. Dist. LEXIS 110301, at *46 (S.D.Fla. Sept. 14, 2010) (“[D]eductions for Bates labeling, notebooks, bindings, and tabs must be made because such costs are not permitted by section 1920....”); J–Way Leasing, Ltd. v. American Bridge Co., No. 07–3031, 2010 WL 816439, at *4, 2010 U.S. Dist. LEXIS 19390, at *11 (N.D.Ohio Mar. 4, 2010) (refusing to grants costs for Bates labeling because Bates labeling is similar to marking exhibits, which is not recoverable); Fairley v. Andrews, No. 03 C 5207, 2008 WL 961592, at *10, 2008 U.S. Dist. LEXIS 28325, at *27 (N.D.Ill. Apr. 8, 2008) (“Although both parties may have benefitted from the Bates labeling, costs associated with the parties' convenience are not recoverable.”). We agree and believe the same rule applies to confidentiality labeling. We accordingly deny NutraSweet's $1215.34 request for costs for Bates labeling and $607.67 request for confidential designations.
NutraSweet also requests $4,100.00 in “Production Support Services,” which it explains as technical work such as “capturing metadata fields, document branding, and Bates labeling” as well as time spent identifying which documents to produce and ensuring compliance with production requirements. (Doc. No. 211 at 23; Doc. No. 205–5 at ¶ 8). While the court believes that metadata extraction and compliance with production requirements are appropriate costs, document branding and Bates labeling are not. Compare Race Tires Am., Inc. v. Hoosier Racing Tire Corp., No. 07–1294, 2011 WL 1748620, at *9, 2011 U.S. Dist. LEXIS 48847, at *28 (W.D.Pa. May 6, 2011) (awarding costs for metadata extraction) with J–Way Leasing, 2010 WL 816439, at *4, 2010 U.S. Dist. LEXIS 19390, at *11 (refusing to grants costs for Bates labeling). Because defendants have not offered a breakdown of “production support services” to show what portion accounts for Bates labeling and document branding, we deduct 50% of this cost and award $2050.00.
D. Scanning and Copying Costs
Plaintiffs argue that the scanning costs incurred by defendants were unreasonable and urge this court to apply a rate of $0.08/page instead of the $0.13–$0.15/page actually incurred by defendants. (Doc. No. 210 at 19). Courts in the Third Circuit have routinely held that copying costs of $0.25/page—nearly double the price incurred by defendants—were reasonable. See Yong Fang Lin v. Tsuru of Bernards, LLC, No. 10–2400, 2011 WL 2680577, at *5, 2011 U.S. Dist. LEXIS 73674, at *12 (D.N.J. July 8, 2011) (“Defendants have not cited to any authority to show that $0.25 is excessive, and we could find none.”); James v. Norton, 176 F.Supp.2d 385, 400 (E.D.Pa.2001) ( “[C]harging $0.25 per page for photocopying costs is reasonable.”); Churchill v. Star Enters., No. 97–3527, 1998 WL 254080, at *10, 1998 U.S. Dist. LEXIS 6068, at *29–30 (E.D.Pa. Apr. 17, 1998) (finding photocopying costs in the amount of $0.25/page to be reasonable). We accordingly grant defendants' requests for scanning and copying costs in the amounts of $270.79 for Ajinomoto and $936.71 for Holland Sweetener.
Plaintiffs next object to the color scanning costs incurred by Ajinomoto because plaintiffs never received any color copies. Defendants assert that color documents potentially responsive to plaintiffs' discovery requests were scanned in color “in order to preserve the integrity and legibility of the information.” (Doc. No. 211 at 15). The court agrees that defendants may recover the cost of copying potentially responsive documents, regardless of whether they are ultimately produced in discovery. See Business Sys. Eng'g, Inc. v. IBM, 249 F.R.D. 313, 315 (N.D.Ill.2008) ( “Identifying and copying documents that may be responsive to a document request are necessary steps in any document production.”). However, defendants fail to demonstrate that all of the color scanning costs they incurred were necessary. The Ajinomoto defendants scanned all of their color hard-copy documents in color—a group that included some graphs and charts. (Doc. 211 at 20). While the court agrees that graphs and charts must necessarily be scanned in color to preserve the information contained within, graphs and charts comprised only a portion of the documents that were scanned in color. The Ajinomoto defendants have not demonstrated the necessity of scanning the remaining documents in color, and plaintiffs are not responsible for paying for defendants' “glitz.” See BASF Corp. v. Old World Trading Co., No. 86–5602, 1992 WL 229473, at *3–4, 1992 U.S. Dist. LEXIS 13691, at *12 (N.D.Ill. Sept. 11, 1992) (holding that unnecessary aesthetic costs are not taxable). Because defendants fail to account for what percentage of the color copying costs were necessarily incurred to scan charts and graphs, the court exercises its discretion and reduces the color copying costs by 50%. See Association of Minority Contrs. & Suppliers v. Halliday Props., No. 97–274, 1999 WL 551903, at *4–5, 1999 U.S. Dist. LEXIS 10328, at *14 (E.D.Pa. June 24, 1999) (reducing defendants' costs by fifty percent for insufficient itemization).
Plaintiffs also object to NutraSweet's $3463.52 cost for “black and white copies” and “photocopies” as insufficiently itemized. (Doc. No. 210 at 20). The Court agrees. NutraSweet has not identified what documents it photocopied nor explained this cost was necessary. Rather, NutraSweet only points to affidavits where it explains the necessity of hard document conversion and a single line in its bill of costs referring to “hard copy production” without further explanation. (Doc. No. 211 at 20). Hard document conversion refers to scanning hard documents into electronic format, not photocopying, and therefore these references are irrelevant. (Dkt. 198–1, at ¶ 12). The line stating “hard copy production” does not explain what documents were copied. The court is unable to determine that these documents were necessary and denies this cost. See Yudenko v. Guarinni, 2010 WL 2490679, at *1–2, 2010 U.S. Dist. LEXIS 59494, at *4–5 (E.D.Pa. June 14, 2010) (denying copying costs where defendants failed to provide a description of the copies).
E. CDs and DVDs
Defendants may recover the full cost of creating CDs and DVDs of electronic documents in response to plaintiffs' requests. Plaintiff argues that these costs, ranging from $15–$35 per CD and $25–$50/DVD are excessive because blank CDs and DVDs cost much less. (Doc. No. 210 at 18). However, the cost of CD and DVD creation does not equal the base price of purchasing a blank CD or DVD—it also includes the cost of transferring information onto that CD or DVD. Furthermore, a review of the invoices shows that a total of seven different third-party vendors hired by the three defendants all charged prices within this range. Therefore, we cannot find that these rates are excessive and accordingly grant defendants' requests.
Although one of NutraSweet's vendors charged $90 for the creation of one DVD, the vendor provided the first DVD for free. Thus, on average, this vendor fell within this price range. (Doc. No. 198–3 at 12 and 15).
F. Miscellaneous Costs
This Court will not award costs for converting a TIFF document to a PDF document. The parties' stipulated discovery order provides that the parties can produce documents in PDF, TIFF, or native format. (Doc. No. 108 at 10). Defendants' decision to convert TIFF documents to PDF format was not a necessary cost for litigation but instead was incurred merely for the convenience of counsel. We deny this cost.
We will deny Holland Sweetener's $600.00 cost for hard drives as insufficiently itemized. Holland Sweetener does not offer any explanation of what these hard drives were used for. Instead, Holland Sweetener offers an affidavit from counsel affirming that all relevant costs in this case were necessarily incurred. (Doc. No. 211 at 9–10). An affidavit containing a “conclusory statement that copies were ‘reasonably necessary throughout the litigation’ does not assist the Court in determining the nature, and the necessity, of the documents that were copied.” Montgomery County v. Microvote Corp., No. 97–6331, 2004 WL 1087196, at *8, 2004 U.S. Dist. LEXIS 8611, at *28 (E.D.Pa. May 13, 2004). We deny the $300.00 “Technical Support” fee associated with the hard drive cost for the same reason. We will, however, grant NutraSweet's $900.00 hard drive charge. NutraSweet has explained that this charge accounts for the cost of a third-party vendor intaking, cataloging and loading NutraSweet's hard drives into its processing system. (Doc. No. 205–5 at ¶ 5). We are satisfied that this was a necessary charge incurred in order to comply with discovery. We deny Holland Sweetener's $60.29 “Freight” charge because it covers shipping.
Plaintiffs additionally object to Holland Sweetener's $986.50 “Data management, folder title capture, and time and management cost” and $1250.00 “Media Processing Fee” cost as insufficiently documented. (Doc. No. 210 at 23 and 27). We have reviewed the record and are satisfied that these costs are sufficiently documented. We award these costs.
Our award of costs is contained in the following chart. For convenience purposes, we adopt the format created by plaintiffs which organizes costs by category and which was referenced by both parties in their motion and opposition. We include the amount requested and granted by this Court. We take note of the fact that the total in the “Amount Requested” column, which is the sum of the various categories, does not match the amount requested by each defendant in their bills of costs. The court is unable to resolve this discrepancy. However, this does not alter our award of costs except in the case of Holland Sweetener, where the sum of the amounts granted by the court ($201,508.95) exceeds the amount demanded by Holland Sweetener. We accordingly alter our grant of costs for Holland Sweetener to be $195,398.82, the full sum requested by Holland Sweetener.
The values of each of the categories were determined by plaintiffs after reviewing the invoices.
For the reasons stated above, it is hereby ORDERED that plaintiffs' motion is GRANTED in part and DENIED in part. Costs are awarded in the amounts of $120,364.17 for Ajinomoto, $195,398.82 for Holland Sweetener, and $194,375.19 for NutraSweet.
+----------------------------------------------------------------------------+ ¦ ¦ ¦Amount ¦Amount ¦ ¦Party ¦Charge ¦Requested ¦Granted ($) ¦ ¦ ¦ ¦($) ¦ ¦ +----------------------------------------------------------------------------+
Ajinomoto OCR 10.22 10.22 Ajinomoto Attenex Patterns Document Mapper 22,633.00 0 Ajinomoto Tech Usage fees (fees for hosting 21,120.00 9,200.00 database and allowing attorneys access) Ajinomoto Concept based review platform document 5,449.00 0 filtering and document analytics Ajinomoto Electronic Data Recovery 856.58 856.58 Ajinomoto Tape Restoration 600.00 600.00 Ajinomoto Data Management (tech time to capture 37.50 37.50 post-it notes, content and create index) Ajinomoto Attenex Workbench (data extraction and 34,340.00 34,340.00 processing) Ajinomoto Attenex Hosting 49,992.00 49,992.00 Ajinomoto Professional fees (stress test analysis, 3,800.00 3,800.00 compiling terms, compiling reports) Ajinomoto Deposition of Bruce Ritenberg 1894.00 895.00 Ajinomoto Color Scanning 645.00 322.50 Ajinomoto Color Scanning 10,022.72 5011.36 Ajinomoto Scanning 270.79 270.79 Ajinomoto Master CD Replication 211.50 211.50 Ajinomoto Master DVD Replication 571.05 571.05 Ajinomoto Master CD/DVD Creation 50.00 50.00 Ajinomoto DVD containing extracted data 35.00 35.00 Ajinomoto Deposition of David Waxler* 1,132.80 1,132.80 Ajinomoto Deposition of John Beyer* 675.00 675.00 Ajinomoto Pages scanned to TIFF* 9422.54 9422.54 Ajinomoto Grade E Scanning* 2930.33 2930.33 Ajinomoto TOTAL 166,699.03 120,364.17
+----------------------------------------------------+ ¦Party¦Charge¦Amount Requested ($)¦Amount Granted ($)¦ +----------------------------------------------------+
Holland OCR fees 1196.37 1196.37 Sweetener Holland Ontrack Inview Native File Hosting and 15,957.69 15,957.69 Sweetener Ontrack Inview TIFF Image Hosting (Data hosting) Holland Hard Drives 600.00 0 Sweetener Holland Technical Support 300.00 0 Sweetener Holland Convert from TIFF to PDF 7.58 0 Sweetener Holland data management, folder title capture, time 986.5 986.5 Sweetener and management (scanning and processing costs) Holland Custodian fee (adding documents to database) 4900.00 4900.0 Sweetener Holland Ontrack Inview (assembling and running of 4720.00 4720.00 Sweetener database) Holland Engineering Analysis 590.00 590.00 Sweetener Holland Native File Processing Fee (de-duplication 100,000.00 100,000.00 Sweetener and keyword searches) Holland Production Processing Fee–Load File 26,244.36 26,244.36 Sweetener Holland Media Processing Fee (processing data) 1250.00 1250.00 Sweetener Holland Freight 60.29 0 Sweetener Holland Deposition of Bruce Ritenberg 731.15 731.15 Sweetener Holland Deposition of John Beyer 1077.00 1077.00 Sweetener Holland Deposition of David Waxler 1216.80 1216.80 Sweetener Holland Document Production 209.25 209.25 Sweetener Holland Written discovery requests and responses 495.90 495.90 Sweetener (copying costs) Holland Litigation Copies 231.56 231.56 Sweetener Holland IMG–Sr. Technical Time 540.00 540.00 Sweetener Holland CD Master 400.00 400.00 Sweetener Holland DVD Duplication 2275.00 2275.00 Sweetener Holland CD Duplicate 105.00 105.00 Sweetener Holland CD Mastering 100.00 100.00 Sweetener Holland DVD Mastering 50.00 50.00 Sweetener Holland Print Backs* 1640.50 1640.50 Sweetener Holland Convert to TIFF* 114.62 114.62 Sweetener Holland Document Imaging* 4,763.89 4,763.89 Sweetener Holland Media–CD ROM and Media DVD–R* 120.00 120.00 Sweetener Holland Ontrack Inview Document TIFF 31,593.36 31,593.36 Sweetener Production* TOTAL 202,476.82 195,398.82
*Undisputed cost
+----------------------------------------------------+ ¦Party¦Charge¦Amount Requested ($)¦Amount Granted ($)¦ +----------------------------------------------------+
NutraSweet Encase Image Extraction 8400.00 8400.00 NutraSweet OCR 5,809.00 5,809.00 NutraSweet Privilege Review 4350.00 4350.00 NutraSweet Data Hosting 566.61 566.61 NutraSweet Search based filtering 18,320.00 18,320.00 NutraSweet Concordance Load File Creation 1,200.00 1,200.00 NutraSweet Back-up Tape Restoration 295.00 295.00 NutraSweet Data Processing (de-duplication, loading 73,940.00 73,940.00 documents into database, and extracting text and metadata) NutraSweet User Access charges with Microsoft Office 13,500.00 13,500.00 Applications (access to database) NutraSweet FTP Transfer (data transfer) 45.00 45.00 NutraSweet Consulting Services (native file processing) 2025.00 2025.00 NutraSweet Production (converting native files to TIFF, 4342.74 4342.74 exporting data, and transferring onto media such as DVDs) NutraSweet Scanned/OCRed documents 17,437.32 17,437.32 NutraSweet TIF to PDF File Conversion 2179.63 0 NutraSweet TIF to PDF Conversion 13,310.94 0 NutraSweet Deposition of John Beyer 1492.70 1492.00 NutraSweet Deposition of David Waxler 2384.80 1504.80 NutraSweet Endorsed Electronic Bates Labels 1215.34 0 NutraSweet Production Support Services 4,100.00 2,050.00 NutraSweet Confidential Designations 607.67 0 NutraSweet Black and White Copies 3444.32 0 NutraSweet Photocopies 19.20 0 NutraSweet CD–ROM Mastering 1120.00 1120.00 NutraSweet CD Duplication 1440.00 1440.00 NutraSweet DVD Creation 240.00 240.00 NutraSweet Hard Drives 900.00 900.00 NutraSweet Image Capture* 35,358.24 35,358.24 NutraSweet Electronic Data Discovery Processing 39.48 39.48 NutraSweet TOTAL 218,082.99 194,375.19
*Undisputed cost