ROSE v. FRANCISCAN ALLIANCE INC

Filing 64

ENTRY ON DEFENDANT'S BILL OF COSTS - Franciscan's Bill of Costs (Filing No. 59 ) is GRANTED in part and DENIED in part. The Court reduces Franciscan's modified request for costs in the amount of $9,023.15 by $3,630.44, and awards Franciscan $5,392.71 in reasonable and necessary costs incurred in this litigation. The Clerk is directed to tax costs against Plaintiff Mary Rose in favor of Franciscan in the amount of $5,392.71. (See Order.) Signed by Judge Tanya Walton Pratt on 2/19/2019.(NAD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MARY ROSE,
Plaintiff,
v.
FRANCISCAN ALLIANCE INC.,
Defendant.

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Case No. 1:16-cv-03212-TWP-MJD

ENTRY ON DEFENDANT’S BILL OF COSTS
This matter is before the Court on Defendant Franciscan Alliance Inc.’s (“Franciscan”) Bill
of Costs (Filing No. 59). Plaintiff Mary Rose (“Rose”) brought this action against Franciscan,
alleging employment discrimination based on disability under the Americans with Disabilities Act
of 1990. Franciscan moved for summary judgment, which the Court granted on June 4, 2018
(Filing No. 57). That same day, final judgment was entered in favor of Franciscan and against
Rose (Filing No. 58). As the prevailing party, Franciscan requested an award of its costs incurred
in defending this action in the amount of $10,876.47 pursuant to Federal Rule of Civil Procedure
54(d)(1). Rose objects to a portion of the costs sought. For the reasons explained below, an
adjusted amount of $5,392.71 in costs is awarded.
I. LEGAL STANDARD
Rule 54(d) creates “a strong presumption that the prevailing party will recover costs, with
the ultimate decision resting within the district court’s discretion.” Weeks v. Samsung Heavy
Indus. Co., 126 F.3d 926, 945 (7th Cir. 1997). “The presumption in favor of awarding costs to the
prevailing party is difficult to overcome, and the district court’s discretion is narrowly confined-the court must award costs unless it states good reasons for denying them.” Id. Absent a showing

of clear abuse of discretion, a district court’s award of costs will not be overturned “[a]s long as
there is statutory authority for allowing a particular item to be taxed as a cost.” Id.
“Statutory authority exists for the award of costs in this case.” Cengr v. Fusibond Piping
Sys., 135 F.3d 445, 454 (7th Cir. 1998). Under 28 U.S.C. § 1920, a federal court may tax as costs:
(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.
28 U.S.C. § 1920.
II. DISCUSSION
The costs in the amount of $10,876.47 requested by Franciscan consist of: $28.30 for
copying charges and fees relating to discovery and defense; $894.75 for expenses associated with
the deposition of Rose; $5,613.02 for electronic discovery service and storage costs related to the
electronic discovery sought by Rose; $428.00 for expenses associated with depositions of
Franciscan’s representatives; $1,000.00 for the fee associated with the deposition of Dr. Kenneth
Young; $61.52 for the fee associated with the deposition of Regina Wessic; $901.31 for the
services of Stewart Richardson for expenses associated with the depositions of Dr. Kenneth
Young, Robin Maluck, and Regina Wessic; $96.25 for charges and fees relating to the request and
production of Rose’s health records; $1,832.62 for Westlaw charges and fees relating to legal
research; and $20.70 for PACER publication fees. Franciscan submitted a sworn affidavit from
its attorney, attesting to the fact that these costs were reasonably and actually incurred in defending
this action (Filing No. 59-1).
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Rose objects to a portion of Franciscan’s costs on the basis that Franciscan “seeks recovery
for costs associated with items outside the scope of [28 U.S.C. § 1920’s] categories.” (Filing No.
60 at 2.) Specifically, Rose objects to an award of costs for legal research expenses, PACER
publication fees, and electronic discovery costs. She objects to the legal research expenses because
they do not “fit squarely” within any of the categories set forth in 28 U.S.C. § 1920. She objects
to the PACER fees as duplicative and unreasonable. With respect to the costs associated with
electronic discovery, Rose argues “the costs of e-discovery may only be taxed if they fit within the
confines of 28 U.S.C. § 1920(4), which allows for the recovery of fees for the exemplification and
the costs of making copies.” CSP Techs., Inc. v. Sud-Chemie AG, 2015 U.S. Dist. LEXIS 65722,
at *5 (S.D. Ind. May 20, 2015) (internal quotation marks omitted). Relying on CSP Technologies,
Rose asserts that only those electronic discovery expenses that are sufficiently related to making
copies are taxable as costs pursuant to 28 U.S.C. § 1920(4), and it is unclear what, if any, portions
of the electronic discovery expenses are related to making copies that were reasonable and
necessary for the litigation. Rose contends that, with the removal of the legal research expenses,
PACER publication fees, and electronic discovery costs from the Bill of Costs, Franciscan should
be awarded $3,410.13 for costs incurred in this litigation (Filing No. 60 at 4).
In its Reply Brief, Franciscan explains; “in the interest of judicial economy, Defendant now
waives its claims for $1,832.62 in Westlaw costs and $20.70 in PACER costs, which means
Defendant agrees to waive $1,853.32 in costs.” (Filing No. 63 at 1.) However, Franciscan
maintains that it is entitled to recover its cost of $5,613.02 incurred for electronic discovery. Thus,
Franciscan seeks a modified amount of costs totaling $9,023.15. The Court will award Franciscan
the cost for each of the requested items upon which the parties agreed, finding them to be
reasonable and necessary in this litigation.

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The single item disputed by the parties is $5,613.02 incurred for electronic discovery
sought by Rose. As noted above, Rose objects to the costs associated with “electronic discovery
service and storage costs” because “the costs of e-discovery may only be taxed if they fit within
the confines of 28 U.S.C. § 1920(4), which allows for the recovery of fees for the exemplification
and the costs of making copies,” CSP Techs., 2015 U.S. Dist. LEXIS 65722, at *5, and it is unclear
how the electronic discovery expenses are related to making copies that were reasonable and
necessary for the litigation.
Franciscan relies on three decisions from district courts in this Circuit, including the CSP
Technologies, to argue that it is entitled to its e-discovery costs under 28 U.S.C. § 1920(4). While
the court in CSP Technologies denied costs for document collection, searching, and data
hosting/electronic storage services because these items were not sufficiently related to “making
copies,” the court did allow e-discovery costs for scanning, OCR, and Bates labeling. Costs for
third-party discovery vendor services for TIFF conversion of documents to make the documents
usable were also allowed. CSP Techs., 2015 U.S. Dist. LEXIS 65722, at *9–11.
In Loparex, the court awarded “the costs of electronically harvesting, processing, and
producing electronic data.” Loparex, LLC v. MPI Release, LLC, 2012 U.S. Dist. LEXIS 104871,
at *22 (S.D. Ind. July 27, 2012). In that case, the court relied on the Seventh Circuit’s holding that
“costs are recoverable under 28 U.S.C. § 1920” “for converting computer data into a readable
format in response to plaintiffs’ discovery requests.” Hecker v. Deere & Co., 556 F.3d 575, 591
(7th Cir. 2009). In Wisconsin Resources, the court awarded costs for a third-party forensic expert
hired to extract electronically-stored information from twenty years of information per the
plaintiffs’ discovery request. Wis. Res. Prot. Council v. Flambeau Mining Co., 2014 U.S. Dist.
LEXIS 105273, at *4–5 (W.D. Wis. Aug. 1, 2014).

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Franciscan asserts that its request for costs related to electronic discovery sought by Rose
falls within the category of costs awarded in CSP Technologies, Loparex, and Wisconsin
Resources. Franciscan argues that more than 12,000 documents were potentially relevant and
responsive to Rose’s discovery requests in this case. These documents were nearly 9GBs of
electronic data. After negotiating with Rose’s counsel, a smaller subset of the documents was
identified for production.

D4, LLC (Franciscan’s third-party e-discovery vendor) then

electronically harvested and processed 3,144 pages via the OCR process. Franciscan explains that
this process is reflected in the July 31, 2017 invoice from D4, LLC (Filing No. 59-1 at 6).
Franciscan asserts that it was most practical and efficient to utilize the services of D4, LLC to
electronically harvest, process, and produce electronic data in response to Rose’s discovery
requests.
Franciscan’s position is well-taken and supported by the Seventh Circuit’s decision in
Hecker as well as the decisions in CSP Technologies, Loparex, and Wisconsin Resources.
Franciscan has supported its request with sufficient evidence. The e-discovery production was
akin to “making copies” and was reasonable and necessary in this litigation as it was requested by
Rose, and Franciscan had to comply with Rose’s discovery request. However, following the
rationale in CSP Technologies, the Court reduces Franciscan’s requested amount of $5,613.02 for
electronic discovery expenses by $3,630.44, which consists of “hosting, user access, and online
data storage fees,” which are not akin to “making copies.” (See Filing No. 59-1 at 6–12.)
CONCLUSION
Franciscan’s Bill of Costs (Filing No. 59) is GRANTED in part and DENIED in part.
The Court reduces Franciscan’s modified request for costs in the amount of $9,023.15 by
$3,630.44, and awards Franciscan $5,392.71 in reasonable and necessary costs incurred in this

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litigation. The Clerk is directed to tax costs against Plaintiff Mary Rose in favor of Franciscan in
the amount of $5,392.71.
SO ORDERED.
Date: 2/19/2019

DISTRIBUTION:
Christopher S. Wolcott
WOLCOTT LAW FIRM LLC
[e-mail]
Nicholas Scott Johnston
HALL, RENDER, KILLIAN, HEATH & LYMAN
[e-mail]
Dana Eugene Stutzman
HALL, RENDER, KILLIAN, HEATH & LYMAN
[e-mail]

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