Chavis Van & Storage of Myrtle Beach, Inc. et al v. United Van Lines, LLC et al

Filing 148

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiffs motion for review of costs [# 145 ] is granted in part as set out above. IT IS FURTHER ORDERED that the Bill of Costs entered on April 9, 2014 [# 143 ] is vacated. IT IS FURTHER ORDERED t hat the Clerk of Court shall tax the following costs in favor of defendants and against plaintiff Chavis Van & Storage of Myrtle Beach, Inc. only: Deposition costs $18,296.55 ESI-related costs $4,500.00 Total taxable costs $22,796.55. Signed by District Judge Rodney W. Sippel on 5/1/14. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CHAVIS VAN & STORAGE OF
MYRTLE BEACH, INC., et al.,
Plaintiffs,
vs.
UNITED VAN LINES, LLC, et al.,
Defendants.

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Case No. 4:11CV1299 RWS

MEMORANDUM AND ORDER
This matter is before me on plaintiffs’ motion to review costs under Fed. R. Civ. P.
54(d)(1). After I entered summary judgment in favor of defendants, the Clerk of Court taxed
costs in the amount of $ 56,245.68. Plaintiffs object to certain aspects of the taxed costs. “When
an expense is taxable as a cost, . . . there is a strong presumption that a prevailing party shall
recover it in full measure.” Concord Boat Corp. v. Brunswick Corp., 309 F.3d 494, 498 (8th Cir.
2002) (internal quotation marks omitted). “The losing party bears the burden of making the
showing that an award is inequitable under the circumstances.” Id. (internal quotation marks
omitted). Allowable costs, however, are generally limited to the categories set out in 28 U.S.C. §
1920, and expenses not in this statute must be borne by the party incurring them. See Crawford
Fitting Co. v. J.T. Gibnons, Inc., 482 U.S. 437, 442-43 (1987).
First, defendants concede a mathematical error in calculating the deposition costs in this
case, which would reduce the taxable deposition costs $13,417.25 (from $34,106.30 to
$20,689.05). I also agree that the charges to synchronize the videotape to the deposition
transcripts are not recoverable as costs, so I will further reduce the award of deposition costs by

$2,392.50, for a total award of deposition costs in the amount of $18,296.55.
The Clerk also taxed $3,734.25 in photocopying expenses. Copying costs may be taxed
only if the copied items were “necessarily obtained for use in the case.” 28 U.S.C. § 1920(4).
Amounts sought for copy expenses must be documented or itemized in such a way that the Court
can meaningfully evaluate the request. Yaris v. Special Sch. Dist. of St. Louis County, 604 F.
Supp. 914, 915 (E.D. Mo. 1986). Yet, here, defendants provide no description whatsoever of any
of the categories into which their photocopying costs fall. Instead, their motion for costs simply
lists a date, bill number, and billed amount with the narrative, “for reproduction charges.” While
I agree with defendants that the Court may award copying costs for more than copies of
documents and exhibits used at trial under certain circumstances, defendants have not
demonstrated that their claimed photocopying expenses are recoverable as costs in this case.1
Without any description of why these charges were incurred, I have no way of determining
whether these copying expenses were “necessarily obtained for use in the case,” or were just for
the convenience of the parties and counsel. Although “the prevailing party is not expected to
provide a detailed description of every piece of paper copied, it is expected to provide the best
breakdown of the copied material obtainable from its records.” Betton v. St. Louis County, 2010
WL 1948265, at *2 (E.D. Mo. May 14, 2010). Here, defendants could have reviewed the
1

Plaintiffs incorrectly assert that the Eighth Circuit Court of Appeals limits recoverable
photocopying costs to documents and exhibits used at trial. The Eighth Circuit did not hold that
discovery-related copying costs are not recoverable in Little Rock Cardiology Clinic PA v.
Baptist Health, 591 F.3d 591, 602 (8th Cir. 2009). Instead, the Court held that the district court
did not abuse its discretion in refusing to award discovery-related copying expenses and noted
that numerous district courts within the Eighth Circuit refused to tax discovery-related copying
costs. Id. The appellate court did not, however, suggest that the district courts were required to
deny discovery-related copying costs; only that it was not an abuse of discretion for the district
court in that case to do so. Id.
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referenced bill numbers to determine why the photocopies were made and provided a description
of the types of materials copied and their purpose. They did not do so and have therefore failed
to provide the kind of information found necessary and sufficient to award discovery-related
photocopying expenses as costs. See, e.g., id., (awarding copying costs because plaintiffs
identified “the types of materials copied”); Katoch v. Midq/PRN Life Support Services, Inc.,
2007 WL 2434052, *12 (E.D. Mo. Aug. 22, 2007) (awarding costs where defendant categorized
the photocopying expenses as “document production requests,” “documents produced pursuant to
plaintiff’s second document production requests,” “exhibit to memorandum in support of
sanctions,” “exhibits to statement of material facts,” “exhibits to memorandum in opposition to
plaintiff’s motion to strike affidavit,” “exhibits to reply to plaintiff’s opposition to motion for
summary judgment,” and “exhibits and documents to support pretrial compliance.”); Cruesoe v.
MERS/Missouri Goodwill Industries, 2007 WL 188367, *1 (E.D. Mo. Jan. 23, 2007) (awarding
copying costs for “documents that it produced to [plaintiff] in discovery and [for] exhibits in
support of its summary judgment motion.”). I will therefore deny photocopying expenses as a
recoverable cost in this case. See, Lockridge v. HBE Corp., 2008 WL 2020290, *3 (E.D. Mo.
May 8, 2008) (declining to award photocopying expenses as costs because “defendant has failed
to provide the Court with any information stating what documents were copied. Defendant’s
itemization merely states ‘internal copying’ or ‘internal color copying’ along with the number of
pages copied. Without this information, the Court cannot order these copying expenses to be
taxed as costs.”); Emmeneger v. Bull Moose Tube Co., 33 F. Supp. 2d 1127, 1134 (E.D. Mo.
1998) (“Because plaintiffs have failed to segregate their properly taxable photocopying costs,
none of the photocopying charges that they claim will be taxed as costs.”).
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The Clerk taxed $18,405.13 in “fees for ESI processing costs necessarily incurred for use
in the case.” Defendants allege that they only sought reimbursement of ESI expenses for
document scanning, file format conversion, and document production. Plaintiffs object that
taxable ESI costs should be limited to scanning and file format conversion, not the other steps
associated with producing ESI. Although the Eighth Circuit has not spoken on this issue, other
district courts within this circuit have concluded that “the electronic scanning of documents is the
modern-day equivalent of ‘exemplification and copies of paper,” and, therefore, can be taxed
pursuant to § 1920(4).” Advance Brands, LLC v. Alkar-Rapidpak, Inc. 2011 WL 4352495, *6
(N.D. Iowa Sept. 15, 2011) (quoting Brown v. The McGraw-Hill Companies, Inc., 526 F. Supp.
2d 950, 959 (N.D. Iowa 2007)).2 However, the cost of bates labeling documents for production
is not taxable as it is for the convenience of the parties and counsel. Moore v. DaimlerChrysler
Corp., 2007 WL 1445591, *1 (E.D. Mo. May 11, 2007).3
Unlike their request for photocopying expenses, defendants have provided some
description of the tasks associated with the claimed ESI expenses. However, despite defendants’
assertion to the contrary, it is clear that defendants are attempting to claim as recoverable costs
certain non-recoverable expenses related to ESI. For example, defendant’s itemized description
includes costs for bates labeling, preparing pdf versions for attorney review and redaction, and

2

28 U.S.C. § 1920 permits the recovery of “fees for exemplification and the costs of
making copies of any materials where the copies are necessarily obtained for use in the case.”
Thus, it is not limited to the cost of copying paper documents.
3

The Federal Circuit Court of Appeals has concluded that costs associated with project
management, keyword searches, data analysis, decryption, deduplication, or other types of pre- or
post-copying activities are not considered recoverable copying expenses under § 1920. CBT
Flint Partners, LLC v. Return Path, Inc., 737 F.3d 1320, 1329-33 (Fed. Cir. 2013); see also, Race
Tires America, Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158 (3d Cir. 2012).
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de-duplication. Moreover, it is impossible to determine from most of the entries whether the
claimed expense is, in fact, recoverable. For example, the numerous entries related to
“processing” and “preparing” data may be recoverable or not, depending on what defendants
mean by “processing.” However, on this record the Court cannot determine what “processing” or
“preparing data” means. Defendants could have provided an explanation of what it meant by
these and other terms of art in their affidavit in support of their motion for costs, or in opposition
to plaintiffs’ motion after this issue was raised by plaintiffs. Defendants did not do this, and the
failure to provide all information necessary to properly review the expenses must be borne by
defendants. Because the cost statute must be strictly construed, I will only award defendants only
a fraction of the ESI costs sought. After consideration of all the evidence of record, in my
discretion I find that an award of $4,500 for ESI-related costs is appropriate and supported by the
evidence.
Finally, defendants do not object to plaintiffs’ request that costs not be taxed against
plaintiff Bruton Properties as it was dismissed from this action early in the litigation. I will
therefore order the Clerk of Court to tax costs against plaintiff Chavis only.
Accordingly,
IT IS HEREBY ORDERED that plaintiffs’ motion for review of costs [#145] is granted
in part as set out above.
IT IS FURTHER ORDERED that the Bill of Costs entered on April 9, 2014 [#143] is
vacated.

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IT IS FURTHER ORDERED that the Clerk of Court shall tax the following costs in
favor of defendants and against plaintiff Chavis Van & Storage of Myrtle Beach, Inc. only:
Deposition costs
ESI-related costs
Total taxable costs

$18,296.55
$4,500.00
$22,796.55

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

Dated this 1st day May, 2014.

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