Artunduaga v. The University of Chicago Medical Center et al
Filing
290
MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 4/13/2017:Mailed notice(kef, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DR. MARIA ARTUNDUAGA,
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Plaintiff,
v.
THE UNIVERSITY OF CHICAGO
MEDICAL CENTER,
Defendant.
Case No. 12 C 8733
MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
Plaintiff Dr. Maria Artunduaga brought national origin discrimination and retaliation
claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., against
Defendant University of Chicago Medical Center (“UCMC”). After a nine-day jury trial, the
jury returned a verdict in favor of Defendant UCMC. As the prevailing party, UCMC brought
the present bill of costs pursuant to Federal Rule of Civil Procedure 54(d)(1). For the following
reasons, the Court awards UCMC $75,383.94 in costs.
BACKGROUND
Dr. Artunduaga was born and raised in Colombia, graduated from a Colombian medical
school, practiced medicine in Colombia for three years, and completed a post-doctoral research
fellowship at Harvard Medical School in 2011. In late June 2011, Dr. Artunduaga began
working at Defendant UCMC as a resident in the Section of Plastic and Reconstructive Surgery
(“PRS”) – a residency that lasts six years. In 2011, Plaintiff signed a one-year residency contract
that was subject to renewal in spring 2012. In this lawsuit, Dr. Artunduaga asserted that
beginning in July 2011 she was subjected to discrimination at UCMC based on her national
origin. Further, Dr. Artunduaga alleged that she complained about this national origin
discrimination to various individuals at UCMC. In mid-November 2011, UCMC placed Dr.
Artunduaga on probation, and in March 2012, PRS faculty decided not to renew Dr.
Artunduaga’s one-year residency contract. UCMC denied that it subjected Dr. Artunduaga to
any discrimination and argued that Dr. Artunduaga did not complain about national origin
discrimination until after UCMC decided to terminate her from the residency program. The jury
returned a verdict in UCMC’s favor on all counts.
LEGAL STANDARD
Rule 54(d)(1) provides that “costs other than attorney’s fees shall be allowed as of course
to the prevailing party unless the court otherwise directs.” See Fed.R.Civ.P. 54(d)(1); see also
Richardson v. City of Chicago, 740 F.3d 1099, 1102 (7th Cir. 2014) (“Rule 54 entitles prevailing
parties to recover their costs”). The list of recoverable costs pursuant to 28 U.S.C. § 1920,
includes (1) fees of the clerk and marshal, (2) fees for transcripts, (3) witness fees and expenses,
(4) fees for copies of papers necessarily obtained for use in the case, (5) docket fees under 28
U.S.C. § 1923, and (6) compensation for court-appointed experts and interpreters. See Harney v.
City of Chicago, 702 F.3d 916, 927 (7th Cir. 2012). Rule 54(d)(1) “creates a presumption in
favor of awarding costs to the prevailing party,” Myrick v. WellPoint, Inc., 764 F.3d 662, 666
(7th Cir. 2014), but gives “the district judge discretion to decide whether an award of costs is
appropriate.” Chesemore v. Fenkell, 829 F.3d 803, 816 (7th Cir. 2016). Taxing costs against the
non-prevailing party requires two inquiries – whether the cost is recoverable and whether the
amount assessed is reasonable. See U.S. Neurosurgical, Inc. v. City of Chicago, 572 F.3d 325,
333 (7th Cir. 2009); Little v. Mitsubishi Motors N. Am., Inc., 514 F.3d 699, 702 (7th Cir. 2008)
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(per curiam). Also, “[a]ny party seeking an award of costs carries the burden of showing that the
requested costs were necessarily incurred and reasonable.” Trustees of Chicago Plastering Inst.
Pension Trust v. Cork Plastering Co., 570 F.3d 890, 906 (7th Cir. 2009). District courts have
considerable discretion in determining whether a particular cost is reasonable and necessary. See
Myrick, 764 F.3d at 666; U.S. Neurosurgical, Inc., 572 F.3d at 333.
ANALYSIS
I.
Fees for Summons and Subpoena – 28 U.S.C. § 1920(1)
UCMC seeks $291.00 in costs associated with service fees pursuant to 28 U.S.C. §
1920(1). Service fees may not exceed the amount charged by the United States Marshal Service,
which is $65.00 per hour, as well as any travel costs and out-of-pocket expenses. See Collins v.
Gorman, 96 F.3d 1057, 1060 (7th Cir. 1996); see also 28 C.F.R. § 0.114(a)(3) (establishing fees
for service of summons). The first bill attached to Defendant’s bill of costs is associated with the
service of a subpoena on Dr. Bezalel Dantz and reflects that service was attempted twice
charging $59 for each attempt – along with $39.00 for “immediate rush service” – totaling
$98.00 for each attempt. The Court reduces the amount to $65.00 per attempt for a total of
$130.00 for the service associated with Dr. Dantz’s subpoena. The next invoice indicates that
$95.00 was billed for a subpoena served on Dr. Jennifer Velander. The Court reduces this
amount to $65.00 pursuant to 28 C.F.R. § 0.114(a)(3). The Court therefore awards a total of
$195.00 for costs under 28 U.S.C. § 1920(1).
II.
Court Reporting Fees – 28 U.S.C. § 1920(2)
Next, UCMC requests costs for court reporting fees pursuant to § 1920(2), which “allows
parties to recover only the transcript expenses that can be considered reasonable, that is, ‘[f]ees
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for ... transcripts necessarily obtained for use in the case.’” Montanez v. Simon, 755 F.3d 547,
558 (7th Cir. 2014) (quoting 28 U.S.C. § 1920(2)). Under Northern District of Illinois Local
Rule 54.1(b), transcript costs shall not exceed the regular copy rate established by the United
States Judicial Conference. See N.D.Ill.L.R. 54.1(b). Judicial Conference rates for depositions
are $3.65 per page for ordinary transcripts, $4.25 per page for fourteen day transcripts, $4.85 per
page for seven day transcripts, $6.05 per page for daily transcripts, $7.25 per page for hourly
transcripts, and $.90 per copy. In addition, attendance fees are recoverable under § 1920(2). See
Extra Equipamentos E Exportacao Ltda. v. Case Corp., 541 F.3d 719, 727 (7th Cir. 2008).
These fees include $110.00 for one half-day (four hours or less) and $220.00 for a full day. See
Gracia v. Sigmatron Int’l, Inc., No. 11 C 7604, 2016 WL 6892861, at *6 (N.D. Ill. Nov. 23,
2016).
A.
Deposition Transcripts and Court Reporter Appearance Fees
UCMC seeks to recover the costs of stenographic transcripts, and, after considering
Plaintiff’s objections, UCMC adjusted the costs of certain transcripts that were copies and not
originals. Accordingly, Plaintiff’s remaining challenges as to stenographic transcript costs
concern the expedited delivery of her 2016 deposition and the expedited delivery for Dr.
Killingsworth’s deposition.1 In its legal memoranda, UCMC sufficiently explains that an
expedited delivery was necessary for Dr. Killingsworth’s deposition because its own expert
disclosures were due three weeks after Dr. Killingsworth’s deposition. As for Plaintiff’s 2016
deposition, UCMC offers no explanation for the expedited delivery charges, and therefore, the
1
UCMC adjusted the expedited delivery charges for Ricardo Garcia’s and Dr.
Verlander’s depositions.
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Court deducts $232.80 from the requested $940.90 for a total of $708.10 for Dr. Artunduaga’s
January 8, 2016 deposition. The Court awards UCMC a total of $9,313.10 for stenographic
deposition charges after considering UCMC’s adjustments made in its reply brief. Also in its
reply brief, UCMC adjusted the court reporter fees to reflect half day costs at $110.00, and thus
the Court deducts $591.88 from the original charge of $1,251.88 and awards $660.00 in court
reporter fees.
B.
Videotaped Transcripts
Also, UCMC moves for costs related to videotaped depositions. Under § 1920(2), costs
for both videotaped and stenographic transcripts may be taxed to the losing party if the video and
transcript are necessarily obtained for use in the case. See Little, 514 F.3d at 702; see, e.g.,
National Diamond Syndicate, Inc. v. Flanders Diamond USA, Inc., No. 00 C 6402, 2004 WL
1557765, at *2 (N.D. Ill. July 8, 2004). A prevailing party may establish the reasonableness of
obtaining a videotaped deposition if there is an uncertainty of whether the witness will appear for
trial. See Oleksy v. Gen. Elec. Co., No. 06 C 1245, 2016 WL 7217725, at *6 (N.D. Ill. Dec. 12,
2016).
Here, Defendant explains why it seeks costs for certain video depositions, including that
it did not order the video depositions of Dr. Lusardi and Dr. Fleming until Plaintiff decided to
call them by video at trial. Further, Defendant was unsure whether Joly Raju or Antonio Copete
would be called at trial. Therefore, the costs associated with these videotaped depositions are
recoverable. As to the video depositions of Dr. Song, Plaintiff, Dr. Killingsworth, and Dr.
Dantz, Defendant fails to explain why both stenographic and videotaped depositions were
“necessarily obtained for use in the case.” The Court does not award costs for these video
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depositions and deducts $6,549.20 for these costs. Consequently, the Court awards UCMC
$3,259.13 in costs associated with videotaped depositions.
C.
Daily Trial Transcripts
UCMC also claims $9,475.55 for daily trial transcripts. “Costs associated with daily trial
transcripts may be recovered where the trial is ‘lengthy and complex.’” Rawal v. United Air
Lines, Inc., No. 07 C 5561, 2012 WL 581146, at *2 (N.D. Ill. Feb. 22, 2012). On the other hand,
“[c]osts for daily transcripts generally are not reasonably necessary, and thus may not be
recovered, where the case is short and simple.” Id. Plaintiff argues that this case was a simple,
straight-forward employment discrimination case – although approximately twenty witnesses
testified during the nine-day trial. Under the circumstances, including the length of the trial and
the importance of witness credibility, Defendant’s costs associated with the daily trial transcripts
are recoverable and reasonable. See Ayala v. Rosales, No. 13 C 4425, 2016 WL 2659553, at *6
(N.D. Ill. May 9, 2016). The Court awards $9,475.55 as requested.
III.
Witness Fees – 28 U.S.C. § 1920(3)
UCMC requests $2,340.00 for the 5.2 hours defense expert Dr. Malcom Cohen prepared
for his deposition pursuant to Rule 26(b)(4). Courts in this district have concluded that costs
associated with the time spent preparing for a deposition are recoverable. See Waters v. City of
Chicago, 526 F.Supp.2d 899, 900-01 (N.D. Ill. 2007); Profile Prod. v. Soil Mgmt. Tech., Inc.,
155 F.Supp.2d 880, 886 (N.D. Ill. 2001). In this district, courts look to the preparation time in
relation to the deposition time to determine whether the preparation time was reasonable. See
Chicago United Indus., Ltd. v. City of Chicago, No. 05 C 5011, 2011 WL 4383007, at * 2 (N.D.
Ill. Sept. 20, 2011) (collecting cases). “These courts have concluded that a ratio of 3 to 1
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preparation to deposition time is reasonable in complex cases[.]” LG Elecs. U.S.A., Inc. v.
Whirlpool Corp., No. 08 C 0242, 2011 WL 5008425, at *5 (N.D. Ill. Oct. 20, 2011).
Dr. Cohen spent 5.2 hours for a 3.33 hour deposition, which falls well within the 3 to 1
ratio. Further, the time Dr. Cohen spent in preparation of his deposition was reasonable based on
the complexity of the damages calculations and his detailed rebuttal to Plaintiff’s damages expert
Dr. Mark Killingsworth. The basic proposition under Rule 26(b)(4) “is relatively
straightforward – a party that takes advantage of the opportunity afforded by Rule 26(b) [] to
prepare a more forceful cross–examination should pay the expert’s charges for submitting to this
examination.” 8 Wright, Miller, and Marcus, Federal Practice & Procedure § 2034. The Court
therefore awards the full amount of $2,340.00 for Dr. Cohen’s deposition preparation.
IV.
Exemplification and Photocopying Costs – 28 U.S.C. § 1920(4)
Next, Defendant seeks a total of $183,122.33 in photocopying and exemplification costs
pursuant to § 1920(4), which allows the Court to tax as costs “fees for exemplification and the
costs of making copies of any materials where the copies are necessarily obtained for use in the
case.” See 28 U.S.C. § 1920(4). Courts interpret § 1920(4) to mean that photocopying charges
for discovery and court copies are recoverable, but copying charges made for attorney
convenience are not. See Montanez, 755 F.3d at 558; Kulumani v. Blue Cross Blue Shield Ass’n,
224 F.3d 681, 685 (7th Cir. 2000). “The district court has discretion to determine which copies
were necessary.” Montanez, 755 F.3d at 558.
A.
Photocopying Costs
First, UCMC requests $4,072.92 in photocopying costs, which reflects two copies of its
pleadings, (for UCMC/the Court) and discovery requests, responses, subpoenas and deposition
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notices (for UCMC, Plaintiff and/or the witness). In addition, UCMC seeks the costs of two
copies (for UCMC/Court) of each deposition transcript that included trial designations or that
were used to impeach (Ricardo Garcia and Plaintiff), and one copy of every other transcript that
UCMC’s counsel used during the case to prepare for summary judgment and/or witness
testimony, to have present at trial for possible impeachment and refreshing recollection, and/or
for trial arguments. Last, UCMC requests costs for one copy of Plaintiff’s trial exhibits (used by
UCMC at trial), two copies of UCMC’s exhibits and the joint exhibits (for UCMC/Court), and
one copy of the admitted UCMC and joint exhibits (for the jury).
Plaintiff takes issue with the fact that Defendant made photocopies for itself asserting
that these copies were merely for attorney convenience. Despite this argument, “[t]ypically,
litigation requires one copy for the defendant, one copy for the plaintiff, and one copy for the
court.” Harkins v. Riverboat Servs., Inc., 286 F. Supp. 2d 976, 983 (N.D. Ill. 2003). Indeed, it is
not unusual for courts to tax as costs two sets of photocopies – one for each side’s lawyers. See
Kulumani, 224 F.3d at 685 (“Two copies of every document filed with the court or provided to
opposing counsel makes sense; it is easy to see why each is useful.”). Therefore, Plaintiff’s
argument is without merit.
Further, UCMC agrees to withdraw its request of $2,143.05 associated with
photocopying its document production for trial. The Court therefore awards Defendant
$1,929.87 in costs associated with photocopying.
B.
Trial Technology
Further, UCMC seeks $12,460.00 for the services provided by Michael Newell of Legal
Visual Services under § 1920(4). Mr. Newell provided technology assistance to UCMC before
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and during the jury trial, namely, database management, video editing, and in-court trial
technology assistance. Unlike the Court’s decision in LG Elecs. U.S.A., Inc. v. Whirlpool Corp.,
No. 08 C 0242, 2011 WL 5008425, at *7 (N.D. Ill. Oct. 20, 2011), in which the exemplification
costs reflected a multi-media presentation explaining complex, technical issues, UCMC seeks
“exemplification costs” to pay for an additional staff member to assist at trial. Mr. Newell, for
example, assisted counsel with presenting evidence at trial and billed such tasks as “legal
support” – work that is usually performed by counsel, paralegals, or law firm staff. The Court
will not award costs for this work. Mr. Newell’s video-editing, however, is reasonable and
recoverable because not only did UCMC present the videos at trial, but courts in this district
have awarded costs for preparing video depositions as such. See Stollings v. Ryobi Techs., Inc.,
No. 08 C 4006, 2015 WL 4100479, at *5 (N.D. Ill. July 6, 2015). The Court therefore awards
Defendant $510.00 for the six hours for video editing provided by Mr. Newell.
C.
Demonstrative Exhibits
In addition, UCMC asks for $5,577.50 associated with the demonstrative timelines
shown to the jury during opening statements and closing arguments that visually demonstrated
the series of events relevant to Plaintiff’s claims. As the Seventh Circuit teaches:
Among the factors that the judge might consider in evaluating the necessity of a
particular type of exemplification is whether the nature and context of the
information being presented genuinely called for the means of illustration that the
party employed. In other words, was the exemplification vital to the presentation
of the information, or was it merely a convenience or, worse, an extravagance?
Cefalu v. Village of Elk Grove, 211 F.3d 416, 428-29 (7th Cir. 2000).
Plaintiff contends that the Court should reject the entire amount requested because the
timelines were purely argumentative. See Se-Kure Controls, Inc. v. Vanguard Prod. Grp., Inc.,
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873 F. Supp. 2d 939, 949 (N.D. Ill. 2012) (“demonstrative materials that merely illustrate expert
testimony, other evidence or argumentative matters are not taxable.”). Although the timelines
were used during closing arguments, they were not argumentative on their face. Rather, the
timelines aided the jury’s understanding of the temporal issues in this matter. Nevertheless,
Plaintiff also asserts that the timelines were not necessary because there were no difficult or
complex technical matters for the jury to absorb. On the contrary, the jury trial lasted nine days,
included over twenty witnesses, and the parties relied upon countless exhibits in presenting their
case. The timelines provided a helpful tool for the jury to put the events into context. See
Cefalu, 211 F.3d at 428.
Turning to the actual charges, according to the invoice provided by Defendant, $4,037.50
of these charges reflect the computer and graphic design and layout, whereas $1,540.00 of the
costs were for the actual exhibit boards. Plaintiff argues that the per hour rates for the graphic
design work were unreasonable, but fails to suggest a reasonable hourly rate for these services.
Plaintiff also argues that the $1,540.00 for the boards themselves is unreasonable because
counsel should have presented the information on the video screens in the courtroom. The
“means of presentation,” however, are recoverable as long as they further “the illustrative
purpose of the exhibit.” Id.; Armstrong v. BNSF Ry. Co., No. 12 C 7962, 2016 WL 7240751, at
*10 (N.D. Ill. Dec. 15, 2016). Defendant explains that it used boards so that the jury could see
the details of the timelines up close, which supports counsel’s choice of boards over the video
screens. As such, the Court awards Defendant $5,577.50 for the demonstrative timelines.
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D.
Electronic Discovery Costs
“[T]he Seventh Circuit has not fully addressed the extent to which e-discovery costs may
be taxed against a non-prevailing party under 28 U.S.C. § 1920.” Allen v. City of Chicago, No.
10 C 3183, 2016 WL 1070828, at *8 (N.D. Ill. Mar. 16, 2016). Courts in this district have
concluded that “ESI discovery costs associated with the conversion of ESI into a readable
format, such as scanning or otherwise converting a paper version to an electronic version or
converting native files to TIFF (if agreed upon by the parties to be the production format), are
compensable under § 1920(4).” Massuda v. Panda Express, Inc., No. 12 CV 9683, 2014 WL
148723, at *6 (N.D. Ill. Jan. 15, 2014) (collecting cases); see also Rawal, 2012 WL 581146, at
*2 (“Cost[s] may be awarded under § 1920(4) for electronically scanning and processing
documents because the ‘electronic scanning of documents is the modern-day equivalent of
‘exemplification and copies of paper.’”); see also Hecker v. Deere & Co., 556 F.3d 575, 591 (7th
Cir. 2009) (Prevailing parties may recover “costs for converting computer data into a readable
format in response to [a] discovery request.”). On the other hand, costs related to the “gathering,
preserving, processing, searching, culling and extracting of ESI simply do not amount to
‘making copies” and therefore, are not compensable. Massuda, 2014 WL 148723, at *6
(quotation omitted).
1.
Monthly Hosting Charges
UCMC provides the Court with a schedule of its electronic discovery costs, which
includes monthly hosting charges in the total amount of $118,498.15. Hosting charges reflect
the fees for storing electronic documents on a third-party server. As discussed directly above,
under § 1920(4), “a party may not recover electronic discovery costs unless the party can show
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that those costs were tantamount to ‘making copies’ and were “reasonable and necessary.’”
Intercontinental Great Brands LLC v. Kellogg N. Am. Co., No. 13 C 321, 2016 WL 316865, at
*7 (N.D. Ill. Jan. 26, 2016). Therefore, “costs may be recoverable only if hosting amounted to
‘copying’ of ESI for production.” Massuda, 2014 WL 148723, at *6.
Here, UCMC provides a chart listing two vendors, Advanced Discovery and Relativity,
and the costs associated with hosting. The chart separates out the costs for the conversion of
data – costs that are recoverable under § 1920(4) – as discussed below. See Rawal, 2012 WL
581146, at *2. Defendant also provides invoices for the “hosting” charges, which describe the
costs as monthly hosting or monthly storage. Without more, UCMC has not demonstrated that
the “hosting costs” were anything more than storage on its vendors’ servers. As such, the Court
will not award the hosting charges of $118,498.15. See Bagwe v. Sedgwick Claims Mgmt.
Servs., Inc., No. 11 C 2450, 2015 WL 351244, at *6 (N.D. Ill. Jan. 27, 2015) (“e-discovery costs
are recoverable only when they are clear analogues of copying costs”); see also Massuda, 2014
WL 148723, at *6 (Ҥ 1920(4), for better or worse, is not concerned with attorney efficiency or
convenience”).2
2
Since the Court last determined whether hosting costs were allowable under Rule
54(d)(1), the law is more fully developed in this area. See, e.g., Intercontinental Great Brands
LLC v. Kellogg N. Am. Co., No. 13 C 321, 2016 WL 316865 (N.D. Ill. Jan. 26, 2016); Massuda
v. Panda Express, Inc., No. 12 CV 9683, 2014 WL 148723, at *6 (N.D. Ill. Jan. 15, 2014).
Indeed, in one of the Court’s earlier decisions, the Court recognized that “there is scant legal
authority in this circuit and district giving litigants guidance in seeking” electronic discovery
costs. Goldberg v. 401 N. Wabash Venture LLC, No. 09 C 6455, 2013 WL 4506071, at *7 (N.D.
Ill. Aug. 23, 2013).
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2.
Conversion Costs
Furthermore, Defendant seeks $39,570.00 in costs associated with scanning or otherwise
converting files into an electronic version, which are costs that are recoverable. See Massuda,
2014 WL 148723, at *6. UCMC provides the affidavit of counsel’s eDiscovery manager who
explains in detail how these costs were incurred for tasks associated with converting ESI into a
format that is readable and/or searchable. Courts in this district have concluded that any such
costs are recoverable. See Bagwe, 2015 WL 351244, at *7 (“Costs for ‘exemplification and the
costs of making copies’ through photocopying and the conversion of ESI into a readable format
are two sides of the same coin: namely, the pre-and-post digital era approach to ‘copying,’ or
creating readable documents that may be transmitted to the party requesting the information.”).
Plaintiff’s argument that UCMC only produced approximately 30,000 documents out of the
800,000 that were converted is of no moment because it was necessary to convert all of the
documents before counsel could determine which documents should be produced. See id. at 6
(“to award only the cost of the USB drive would be akin to awarding to the prevailing party only
the cost of paper if photocopies of paper documents were provided.”). Because UCMC has
established that the conversion costs were reasonable and necessary, the Court awards it
$39,570.00 in conversion costs.
3.
Bates Labeling Costs
Next, Defendant requests $584.73 in costs associated with Bates-labeling, which is
“generally considered a necessary and taxable expense in this district.” Life Plans, Inc. v. Sec.
Life of Denver Ins. Co., 52 F. Supp. 3d 893, 903 (N.D. Ill. 2014) (collecting cases). As such, the
Court awards this $584.73 cost.
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4.
OCR Costs
Defendant also seeks costs associated with adding optical character recognition (“OCR”)
to the digital files in the amount of $1,848.36. Because this process is fundamental to ensuring
that the digital documents were readable and searchable, the Court awards these costs. See
Hecker, 556 F.3d at 591; CBOE v. Int’l Sec. Exch., LLC, No. 07 CV 623, 2014 WL 125937, at
*9 (N.D. Ill. Jan. 14, 2014) (prevailing party “may recover all of its conversion costs and
associated costs (making files readable through optical character recognition, scanning, creating
CD–Roms, and associated activities).”).
V.
Other Costs
Last, UCMC asks for $120.70 associated with parking and transportation costs for certain
deponents. These costs are recoverable as witness fees pursuant to § 1920(3) and 28 U.S.C. §
1821(c). The Court therefore awards $120.70 in travel costs.
CONCLUSION
For the these reasons, the Court awards Defendant $75,383.94 in costs under Rule
54(d)(1).
Date: April 13, 2017
ENTERED
_______________________________
AMY J. ST. EVE
United States District Court Judge
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