Andrews et al v. Autoliv Japan, Ltd.

Filing 299

OPINION AND ORDER granting in part and denying in part Plaintiff Jamie Lee Andrews' Motion to Review Clerks Taxation of Costs against Jamie Andrews #288 . The following costs, in the aggregate amount of $1,512.85, are disallowed: (1) $572.35 in realtime and equipment rental costs in the November 23, 2015, invoice; (2) $378.00 for the rough draft of Dr. Van Arsdell's deposition; and (3) $562.50 in technical services performed by Ricoh. Plaintiff's Motion is DENIED AS MOOT with respect to costs associated with transcripts of deposition other than Dr. Van Arsdell's. Signed by Judge William S. Duffey, Jr on 6/29/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JAMIE LEE ANDREWS, as
surviving spouse of Micah Lee
Andrews, Deceased, and JAMIE
LEE ANDREWS, as Administrator
of the Estate of Micah Lee Andrews,
Deceased,
Plaintiff,
v.

1:14-cv-3432-WSD

AUTOLIV JAPAN, LTD and JOHN
DOES 1-5,
Defendants.

OPINION AND ORDER
This matter is before the Court on Plaintiff Jamie Lee Andrews’ (“Plaintiff”)
Motion to Review Clerk’s Taxation of Costs against Jamie Andrews [288]
(“Motion to Review Costs”).
I.

BACKGROUND
On January 10, 2017, the Court issued an order [274] granting Defendant

Autoliv Japan, Ltd.’s (“Autoliv”) Motion for Summary Judgment, and dismissed
this action. On January 16, 2017, Autoliv submitted its bill of costs [277]. On

February 3, 2017, the Clerk of Court taxed Plaintiff costs in the amount of
$18,196.64.
On February 9, 2017, Plaintiff filed her Motion to Review Costs. In it,
Plaintiff moves to disallow $,2743.80 of the costs, arguing they are not authorized
under 28 U.S.C. § 1920. Specifically, Plaintiff argues that the following costs are
not allowed:
Invoice date 11/23/2015 ([277.2] at 2)
Realtime Services
$472.35
Equipment Rental
$100.00
Invoice date 2/10/2016 ([277.2] at 3)
Rough Draft
$271.50
Invoice date 12/15/2015 ([277.2] at 4)
Rough Draft
$426.00
Invoice date 12/31/2015 ([277.2] at 8)
Certified Transcript – Expedited $533.45
Invoice date 2/29/2016 ([277.2] at 11)
Rough Draft
$378.00
TOTAL

$2181.30

Plaintiff also argues that $562.50 in costs for “technical services” provided by
Ricoh USA, Inc. are not allowed.
On February 17, 2017, Autoliv filed its response [291] to Plaintiff’s motion.
Autoliv concedes that the $572.35 costs from the November 23, 2015, invoice are
not taxable. Autoliv explains that it needed the rough drafts and expedited copies
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of certain deposition transcripts to prepare its expert witness, William Van Arsdell,
Ph.D. Autoliv also argues that the technical services provided by its e-discovery
vendor Ricoh USA, Inc., are taxable, and, in support, provides a letter from Ricoh
to an employee of Autoliv’s law firm.
In her reply brief [296], Plaintiff concedes that Autoliv demonstrated a need
for rush copies of the depositions of Chris Caruso, Steven Meyer, and Joseph
Burton, M.d. Plaintiff maintains her objection to the taxation of Dr. Van Arsdell’s
deposition, arguing that an expedited copy of a deposition taken more than thirty
days before a pretrial-motion deadline is not taxable. Plaintiff argues that the letter
from Ricoh to Autoliv does not explain the reasons for and purpose of Ricoh’s
services.
II.

DISCUSSION
A.

Legal Standard

Rule 54(d)(1) of the Federal Rules of Civil Procedure provides, in part:
Unless a federal statute, these rules, or a court order provides
otherwise, costs--other than attorney's fees--should be allowed to the
prevailing party . . . .
Fed. R. Civ. P. 54(d)(1). 28 U.S.C. § 1920 provides, in part:
A judge or clerk of any court of the United States may tax as costs the
following: . . . (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
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and the costs of making copies of any materials where the copies are
necessarily obtained for use in the case; . . . . A bill of costs shall be
filed in the case and, upon allowance, included in the judgment or
decree.
28 U.S.C. § 1920.
“Where a party challenges the costs requested, the burden lies with the
challenging party.” Sensormatic Elecs. Corp. v. Tag Co., No. 06-81105, 2009 WL
3208649, at *2 (S.D. Fla. Oct. 2, 2009) (citing EEOC v. W & O, Inc., 213 F.3d
600, 621 (11th Cir. 2000)).
B.

Analysis

As an initial matter, Defendant concedes that the $572.35 in costs from the
November 23, 2015, invoice are not taxable, and Plaintiff’s Motion is granted with
respect to these costs. Plaintiff concedes that Autoliv demonstrated a need for rush
copies of all deposition other than Dr. Van Arsdell’s, and Plaintiff’s Motion is
denied as moot with respect to costs related to these depositions.
Plaintiff next challenges the taxation of costs for the rough draft of Dr. Van
Arsdell’s deposition. Autoliv argues that the rough draft of Dr. Van Arsdell’s
deposition was necessary to prepare its motion for summary judgment. “Although
costs for deposition transcripts necessarily obtained for use in the case are
recoverable under 28 U.S.C. § 1920(2), costs incurred merely for counsel’s
convenience are not recoverable.” Barrera v. Weiss & Woolrich S., 900 F. Supp.
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2d 1328, 1335 (S.D. Fla. 2012) (internal quotation marks and citations omitted).
“In other words, while deposition transcript costs are generally recoverable,
multiple copies of a deposition transcript, courier fees regarding the acquisition of
a deposition transcript and other ancillary costs related to deposition transcripts are
generally not recoverable.” Id. If an expedited or rough transcript is necessary, the
cost is recoverable. See id. In Barrera, the Southern District of Florida found that
depositions taken within thirty days of a summary judgment deadline justify
expedited transcript costs. Id.; see also Alsip v. Wal-Mart Stores E., LP, No. CV
14-476-CG-N, 2016 WL 6471044, at *2 (S.D. Ala. Oct. 31, 2016) (expedited
transcript necessary for party to determine whether to retain a rebuttal expert
before expert disclosure deadline).
Here, Autoliv claims it needed to expedite the transcript of Dr. Van
Arsdell’s February 11, 2016, deposition to analyze its potential summary judgment
arguments and to prepare its summary judgment motion, which was due on March
30, 2016. ([292] at 4). Autolive had forty-eight (48) days between the deposition
and the summary judgment deadline. The Court finds, under these circumstances,
that the expedited transcript was not “necessarily obtained for use in the case.”
28 U.S.C. § 1920(2). Plaintiff’s Motion is granted with respect to the $378.00 cost
of the expedited rough draft of Dr. Van Arsdell’s deposition.

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Plaintiff next argues that $562.50 in costs for copying services provided by
Ricoh are not taxable, because Autoliv cannot categorize them as costs of making
necessary copies. Autoliv, in response, claims Rico’s services were for manual
processing that was necessary to create optical character recognition (“OCR”),
image and text files for Autoliv’s productions. ([292] at 6; Mendelsohn Decl.
[293] ¶ 7, Ex. A).
The Eleventh Circuit has not analyzed whether Section 1920 authorizes
costs for various tasks and expenses in connection with electronic discovery. In
CBT Flint Partners, LLC v. Return Path, Inc., the Federal Circuit, applying
Eleventh Circuit law, analyzed the question extensively. 737 F.3d 1320 (Fed. Cir.
2013). The Federal Circuit, and several district courts in our Circuit, have
concluded that while the costs of creating electronic copies of documents are
generally recoverable under Section 1920(4), the costs of creating and managing a
dynamic, indexed and searchable database that allows counsel to search for and
within the documents are not recoverable under Section 1920(4). Blitz Telecom
Consulting, LLC v. Peerless Network, Inc., No. 614-cv-307-ORL-40-GJK, 2016
WL 7325544, at *7 (M.D. Fla. Aug. 31, 2016), report and recommendation
adopted, 2016 WL 7446390 (M.D. Fla. Oct. 4, 2016) (citing cases); CBT, 737 F.3d
at 1328-33 (finding the costs of making electronic copies may be recoverable

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under Section 1920(4), but many of the costs associated with creating, maintaining,
and utilizing the database where the documents are stored are not recoverable).
One court in our Circuit has found that the cost of using optical character
recognition to search electronic documents is not recoverable under Section
1920(4). Procaps v. Patheon Inc., No. 12-24356-CIV, 2016 WL 411017, at *13
(S.D. Fla. Feb. 2, 2016). The Court finds Procaps persuasive, particularly in light
of the Supreme Court’s description of taxable costs as “limited by statute and []
modest in scope.” Taniguchi v. Kahn Pacific Saipan, Ltd., 566 U.S. 560 (2012).
Here, Autoliv provides a letter from Ricoh to an employee of Autoliv’s law
firm, stating that “Ricoh performed technical services to format OCR and manually
process problem file types to create images and text files for Autoliv’s
productions.” ([293.1] at 2). These activities included creating an “export
template with custom fields in addition to the OCR loading for the first 4 volumes”
“OCR loading across 3 volumes,” and “OCR overflow loading.” (Id.). Because
costs for creating OCR are not recoverable, and because these appear to be the
large majority of the costs Autoliv seeks, the Court grants Plaintiff’s Motion with
respect to Ricoh’s technical services. The Court also notes that Ricoh’s and
Autoliv’s declaration fail to describe with any specificity why OCR was necessary,
the purpose for which OCR was used, and the services Ricoh performed other than

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the creation of OCR. The Court thus has no basis upon which to determine
whether the costs for Ricoh’s services are taxable under Section 1920(4), and the
Court grants Plaintiff’s Motion for this additional reason. See Akanthos Capital
Mgmt., LLC v. CompuCredit Holdings Corp., 2 F. Supp. 3d 1306, 1316 n.12 (N.D.
Ga. 2014) (“Even if e-discovery costs were taxable . . .Defendants have not
provided enough detail for the Court to determine whether their costs can be
taxed.”). Costs taxed against Plaintiff are reduced by $562.50.
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff Jamie Lee Andrews’

(“Plaintiff”) Motion to Review Clerk’s Taxation of Costs against Jamie Andrews
[288] is GRANTED IN PART and DENIED IN PART AS MOOT. The
following costs, in the aggregate amount of $1,512.85, are disallowed: (1) $572.35
in realtime and equipment rental costs in the November 23, 2015, invoice;
(2) $378.00 for the rough draft of Dr. Van Arsdell’s deposition; and (3) $562.50 in
technical services performed by Ricoh. Plaintiff’s Motion is DENIED AS MOOT
with respect to costs associated with transcripts of deposition other than Dr. Van
Arsdell’s.

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SO ORDERED this 29th day of June, 2017.

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