Madison Oslin Inc v. Interstate Resources, Inc. et al

Filing 175

MEMORANDUM AND ORDER Re: Costs. Signed by Judge Marvin J. Garbis on 3/18/2016. (bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MADISON OSLIN, INC.,
et al.,
Plaintiffs
vs.

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INTERSTATE RESOURCES, INC.,
et al.,
Defendants

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CIVIL ACTION NO. MJG-12-3041

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MEMORANDUM AND ORDER RE: COSTS
The Court has before it Plaintiffs’ Motion for Review of
the Clerk’s Order Taxing Costs [ECF No. 168] and the materials
submitted relating thereto.

The Court has reviewed the exhibits

and considered the materials submitted by the parties.

The

Court finds a hearing unnecessary.

I.

PERTINENT BACKGROUND1
By Memorandum and Order Re: Bond [ECF No. 151], the Court

denied Plaintiffs’ Motion to Stay Consideration of Defendants’
Bill of Costs [ECF No. 142] and directed the Clerk to proceed
expeditiously to process Defendants’ Bill of Costs.

Plaintiffs

were directed by separate Order [ECF No. 152] to deposit

1

For a detailed background of the instant case, see
Memorandum & Order Re: Summary Judgment, ECF No. 136.

$8,384.952 with the Clerk as security for the payment of costs,
and they timely complied.

The Clerk’s Order Taxing Costs [ECF

No. 165] was filed on January 15, 2016, taxing costs in favor of
Defendants in the amount of $41,412.35.3
By the instant motion, Plaintiffs object to $28,839.65 of
Defendants’ copying costs that pertained to Defendants’
production of electronically stored information.4

II.

LEGAL STANDARD
A district court may conduct a review of the clerk’s

taxation of costs if a motion is served within seven days of the
clerk’s order.

Fed. R. Civ. P. 54(d)(1).

Rule5 54(d) provides

that “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.”

“To overcome the presumption,

a district court must justify its decision [to deny costs] by

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Representing the amount of costs not disputed by
Plaintiffs.
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Defendants had sought $43,055.50. Bill of Costs, ECF No.
140.
4
In the Conclusion section of the instant motion, Plaintiffs
request the Court to reduce the cost award by $33,027.40. Mot.
7, ECF No. 168. However, there is no argument related to any
objected amount except for the $28,839.65 of copying costs. The
Court assumes that $33,027.40 represents the amount of actual
taxed costs ($41,412.35) less the amount originally not disputed
($8,384.95), which is a meaningless number.
5
All “Rule” references herein are to the Federal Rules of
Civil Procedure.

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articulating some good reason for doing so.”

Cherry v. Champion

Int’l Corp., 186 F.3d 442, 446 (4th Cir. 1999).
The expenses that a federal court may tax as a cost are
limited to:
(1) Fees of the clerk and marshal;
(2) Fees for printed and 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.
“Once it is established that an item falls within 28 U.S.C.
§ 1920, the prevailing party is presumed to be entitled to
recover costs, and the burden is on the losing party to
demonstrate impropriety of an allowance.” Cofield v. Crumpler,
179 F.R.D. 510, 514 (E.D. Va. 1998); see Young v. United Parcel
Serv., Inc., DKC 08–2586, 2014 WL 858330, *1–2 (D. Md. Mar. 4,
2014).

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III. DISCUSSION
Plaintiffs’ objection is based on their interpretation of
the parties’ agreement at the outset of the case that all ESIrelated costs would be borne by the producing party.
ECF No. 168.

Mot. 2,

The agreement states:

The parties agree that the cost of ESI
production from the reasonably accessible
sources identified herein is to be borne by
the producing party, subject to the right of
the producing party to seek relief based on
burdensomeness or disproportionality.
Joint Agreement as to Handling of Electronically Stored
Information [ECF No. 148-1] at 5.
It is clear from the name of the agreement itself that it
addressed the process for producing electronic discovery, and
the cited clause states how the production costs will be
handled.

However, it does not follow that the scope of the

agreement can be expanded to also address the costs recoverable
to the prevailing party upon completion of the case.
Further, the parties agreed to require the production of
metadata in addition to simply reformatting the information into
a non-editable format.

Id. at ¶ m.

The costs for such

production are recoverable under 28 U.S.C. § 1920(4).

See,

e.g., Country Vintner of N. Carolina, LLC v. E. & J. Gallo
Winery, Inc., 718 F.3d 249, 262 (4th Cir. 2013)(“[C]onverting
ESI from editable to non-editable formats, or copying ESI in its

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native format, often encompasses the copying of metadata. . .
If, for instance, a case directly or indirectly required
production of ESI-unique information such as metadata, we
assume, without deciding, that taxable costs would include any
technical processes necessary to copy ESI in a format that
includes such information.”); CBT Flint Partners, LLC v. Return
Path, Inc., 737 F.3d 1320, 1328 (Fed. Cir. 2013) (“[W]e conclude
that recoverable costs under section 1920(4) are those costs
necessary to duplicate an electronic document in as faithful and
complete a manner as required by rule, by court order, by
agreement of the parties, or otherwise. To the extent that a
party is obligated to produce (or obligated to accept)
electronic documents in a particular format or with particular
characteristics intact (such as metadata, color, motion, or
manipulability), the costs to make duplicates in such a format
or with such characteristics preserved are recoverable as ‘the
costs of making copies ... necessarily obtained for use in the
case.’” quoting 28 U.S.C. § 1920(4)).
The Court finds that the copying costs incurred for
Defendants’ production of electronically stored information were
required for use in the case, were limited to allowable costs,
and are reasonable.

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For the reasons stated in the Memorandum and Order Re: Bond
[ECF No. 151], Plaintiffs shall be required to post the
remainder of taxed costs as security.
Accordingly, by separate Order, Plaintiffs shall be
required to post security in the amount of $33,027.406 by March
25, 2016.

IV.

CONCLUSION
For the foregoing reasons:
1.

Plaintiffs’ Motion for Review of the Clerk’s
Order Taxing Costs [ECF No. 168] is DENIED.

2.

By separate Order, Plaintiffs shall be required
to post security in the amount of $33,027.40 by
March 25, 2016.

SO ORDERED, on Friday, March 18, 2016.

/s/__________
Marvin J. Garbis
United States District Judge

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$41,412.35 less $8,384.95 deposited on July 10, 2015.

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