eDiscovery Daily Blog

• December 9, 2011

As noted yesterday and back in May, prevailing defendants are becoming increasingly successful in obtaining awards against plaintiffs for reimbursement of eDiscovery costs.

An award of costs to the successful defendants in a patent infringement action included $64,295 in costs for conversion of data to TIFF format and $5,950 for an eDiscovery project manager in Jardin v. DATAllegro, Inc., No. 08-CV-1462-IEG (WVG), (S.D. Cal. Oct. 12, 2011).

Defendants in a patent infringement action obtained summary judgment of non-infringement and submitted bills of costs that included $64,295 in costs for conversion of data to TIFF format and $5,950 for an eDiscovery project manager. Plaintiff contended that the costs should be denied because he had litigated the action and its difficult issues in good faith and there was a significant economic disparity between him and the corporate parent of one of the defendants.

The court concluded that plaintiff had failed to rebut the presumption in Fed. R. Civ. P. 54 in favor of awarding costs. The action was resolved through summary judgment rather than a complicated trial, and there was no case law suggesting that the assets of a parent corporation should be considered in assessing costs. The financial position of the party having to pay the costs might be relevant, but it appeared plaintiff was the founder of a company that had been sold for $500 million.

Taxing of costs for converting files to TIFF format was appropriate, according to the court, because the Federal Rules required production of electronically stored information and “a categorical rule prohibiting costs for converting data into an accessible, readable, and searchable format would ignore the practical realities of discovery in modern litigation.” The court stated: “Therefore, where the circumstances of a particular case necessitate converting e-data from various native formats to the .TIFF or another format accessible to all parties, costs stemming from the process of that conversion are taxable exemplification costs under 28 U.S.C. § 1920(4).”

The court also rejected plaintiff’s argument that costs associated with an eDiscovery “project manager” were not taxable because they related to the intellectual effort involved in document production:

Here, the project manager did not review documents or contribute to any strategic decision-making; he oversaw the process of converting data to the .TIFF format to prevent inconsistent or duplicative processing. Because the project manager’s duties were limited to the physical production of data, the related costs are recoverable.

So, what do you think?  Will more prevailing defendants seek to recover eDiscovery costs from plaintiffs? Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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