CAMESI et al v. UNIVERSITY OF PITTSBURGH MEDICAL CENTER et al

Filing 521

ORDER. Plaintiffs' Motion (Doc. 518 ) to review the Clerk's Taxation of Costs (Doc. 515 ) is GRANTED to the extent that it requests judicial review, but DENIED to the extent that it seeks to vacate or reduce the amount of costs awarded. Signed by Judge Cathy Bissoon on 3/19/15. (dcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KAREN CAMESI, et al.,
Plaintiffs,
v.
UNIVERSITY OF PITTSBURGH
MEDICAL CENTER, et al.,
Defendants.

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Civil Action No. 09-85J
Judge Cathy Bissoon

ORDER
Plaintiffs’ Motion (Doc. 518) to review the Clerk’s Taxation of Costs (Doc. 515)
is GRANTED to the extent that it requests judicial review, but DENIED to the extent that it
seeks to vacate or reduce the amount of costs awarded.
In Kuznyetsov v. West Penn Allegheny Health Sys., Inc., Judge Donetta W. Ambrose
issued an opinion and order addressing the taxation of costs in that case. See Doc. 164 in
Civil Action No. 10-948 (W.D. Pa. Oct. 23, 2014). Judge Ambrose rejected several policy-based
and other arguments that are materially analogous, if not identical, to the ones raised by Plaintiffs
here. See id. The Kuznyetsov decision is well-reasoned, and the Court hereby incorporates it by
reference regarding the arguments presented in both cases. Thus, the instant ruling will address
only those issues that have not already been decided, directly or by implication, in Kuznyetsov.
The remaining issues can be resolved in short order.
As to the “necessity” of Defendants’ ESI discovery costs, see Pls.’ Br. (Doc. 519) at 3-5,
the Court rejects Plaintiffs’ complaints that e-discovery responses never were “produced”
or “used.” Plaintiffs insisted on broad ESI productions, and then later joined Defendants in

moving to stay e-discovery. See Doc. 440 at ¶¶ 2, 5; see also Pls.’ Br. at 7 (highlighting,
in different context, that parties “agreed to stay ESI discovery . . . before UPMC ever actually
produced anything”). That the parties later agreed to stay ESI did not excuse Defendants from
fulfilling their discovery obligations, and Plaintiffs cannot now complain that “nothing was
produced” when the lack of production resulted from the agreed-upon stay.
Next, the Court rejects Plaintiffs’ argument that Defendants failed to distinguish taxable
ESI costs from non-taxable ones. See Pls.’ Br. at 5-9. Defendants have requested a little more
than one-third (1/3) of the total ESI services paid to their vendor, Kroll Ontrack. See Clerk’s
Taxation of Costs at ¶ 3. Otherwise, Defendants have submitted declarations demonstrating,
to the Court’s satisfaction, that the charges asserted are recoverable under prevailing law.
See Doc. 511 at pgs. 34-35 & Doc. 514-1. Plaintiffs’ objections in this regard are overruled.
The next argument not already addressed in Kuznyetsov is Plaintiffs’ assertion that costs
should not be awarded in light of Defendants’ failure to reasonably confer regarding e-discovery.
See Pls.’ Br. at 11-13. To be sure, Defendants’ compliance with its e-discovery responsibilities
got off to a “rocky start,” but, in the Court’s view, Defendants eventually came around and
engaged in meaningful, good faith efforts. Defendants assert, and the Court finds sufficient
corroboration, that their sizeable e-discovery expenditures resulted from Plaintiffs’ unwillingness
or inability to agree on reasonable limitations once it became clear how much responsive
information would result. These issues likely are what caused the parties to call a “truce,”
agreeing to stay ESI until it became clear whether further efforts would be cost and timejustified. In any event, the Court will not assign blame to Defendants, any more than it will
Plaintiffs, for the e-discovery costs incurred, and the Court believes that Defendants have acted
reasonably in restricting their requested recoveries to those falling squarely within the law.

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Next is Plaintiffs’ assertion that the named representatives should not be made to bear the
costs of the entire collective action. See Pls.’ Br. at 14-17. The Court finds, as did Judge
Ambrose, that counsel’s submissions do not show the named Plaintiffs to be indigent. Moreover,
assuming that their financial status is even relevant to the legal analyses, the Court questions
whether any costs-award actually will be paid by the named Plaintiffs. See Defs.’ Br. (Doc. 520)
at 8-10 (citing documents indicating that Plaintiffs’ counsel has agreed to bear costs, and noting
Plaintiffs’ failure to refute this assertion, despite having been placed on notice of this issue
before filing their current briefing). Finally, the Court incorporates by reference the remaining
legal arguments in Defendants’ brief, and Plaintiffs’ efforts to avoid costs based on the named
representatives’ financial status are rejected.
Any remaining distinctions between the issues and arguments presented in this case and
in Kuznyetsov are immaterial, and Plaintiffs’ objections to the Taxation of Costs are unavailing.
As the Court previously has referenced, Plaintiffs’ counsel are, and hold themselves out to be,
high-profile specialists in the area of overtime and meal break deduction litigation.
See generally, e.g., Pls.’ Br. in Supp. of Mot. for Appt. of Counsel (Doc. 233) at 6-8 (describing
qualifications of Plaintiffs’ counsel). Both sides expended rather substantial time, energy and
resources litigating this case, and one fairly may characterize Plaintiffs-counsel’s litigation
efforts as thorough, zealous and “no holds barred.” Now that the case has come to a conclusion,
albeit unfavorably for Plaintiffs, neither the interests of justice nor the law favor allowing them
to skip the bill.1

Should Plaintiffs, rather than their counsel, be called upon to pay the costs, the Court has no
doubt that counsel, given their of level of experience and qualification, clearly explained to their
clients the risks associated with this litigation.
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IT IS SO ORDERED.

March 19, 2015

s\Cathy Bissoon
Cathy Bissoon
United States District Judge

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