Mann v. Heckler & Koch Defense, Inc. et al

Filing 232

MEMORANDUM OPINION re: Bill of Costs. (see Order for complete details) Signed by District Judge James C. Cacheris on 4/28/11. (tfitz, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

JASON MANN,
Plaintiff,
v.
HECKLER & KOCH DEFENSE, INC.,
Defendant.

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1:08cv611 (JCC)

M E M O R A N D U M

O P I N I O N

This matter is before the Court on Defendant Heckler &
Koch Defense, Inc.’s (“HKD” or “Defendant”) Bill of Costs.
Following summary judgment in its favor, HKD seeks to recover
costs from Plaintiff Jason Mann (“Mann” or “Plaintiff”) in the
amount of $67,918.00.

For the following reasons, the Court will

grant $23,890.41 in costs.

I. Background
This matter arose from Mann’s employment as Law
Enforcement Sales Manager at HKD from April 2, 2007, to July 17,
2008.

On November 23, 2007, the United States Secret Service

(the “Secret Service”) published a Request for Proposals (“RFP”)
to procure assault rifles equipped with ambidextrous selector
levers (ambi-levers), with a proposal deadline of February 29,
2008.

HKD submitted a written proposal touting its HK416’s
1

ambidextrous selector, which, in fact, was not equipped with
ambi-levers.
After the RFP closed, Wayne Weber (“Weber”), Mann’s
supervisor, purchased after-market ambi-levers from a thirdparty and directed Robbie Reidsma (“Reidsma”), one of Mann’s
subordinates, to hand-deliver them to a Secret Service officer,
which Reidsma did.
When Weber informed Mann of this, Mann expressed his
disapproval to Weber, Reidsma, and other people inside and
outside of HKD.

HKD conducted a formal investigation into

Mann’s allegations and placed Mann on administrative leave.
During this time, it restricted his access to email, phone,
files, and the HKD office.
Mann instituted this action on June 11, 2008.

He

filed an amended complaint (“Amended Complaint”) on July 18,
2008 stating four claims: retaliation in violation of 31 U.S.C.
§ 3730(h) after Mann complained to his superiors about possible
fraud on the government (Count I), and again after he filed this
action (Count II), and defamation by HKD’s employees (Counts III
and IV).
In response to Defendant’s Motion to Dismiss the
Amended Complaint, the Court dismissed Count II on October 7,
2008.

It also dismissed Count IV with prejudice on February 10,

2009 in response to the parties’ joint request.
2

Defendant moved

for summary judgment in its favor on the remaining claims,
Counts I and III, on April 8, 2009.
motion on July 1, 2009.

The Court granted this

Plaintiff move to reconsider that

decision on July 15, 2009, but the Court denied that motion on
September 2, 2009.
Defendant now seeks to recover costs incurred
defending this case.

Defendant filed its Bill of Costs on July

13, 2009 [Dkt. 211 (“BOC”)], which Plaintiff objected to on
[Dkt. 214 (“Opp.”)].
3, 2009.

Defendant filed its reply brief on August

[Dkt. 220 (“Reply”).]

Defendant’s Bill of Costs is

before the Court.
II.

Standard of Review

Federal Rule of Civil Procedure 54(d) permits a
prevailing party to recover costs where authorized by statute.
Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 444-45
(1987).
costs.

Where authorized, Courts have wide latitude to award
Id.

Moreover, Rule 54(d)(1) creates a presumption that

the prevailing party will be awarded costs.

Fells v. Virginia

Dep’t of Transp., 605 F. Supp. 2d 740, 742 (E.D. Va. 2009)
(citing Cherry v. Champion Int.'l Corp., 186 F.3d 442, 446 (4th
Cir. 1999)).

Yet the prevailing party bears the burden of

showing that its requested costs are allowable under the
relevant statute--28 U.S.C. § 1920.
F.R.D. 510, 514 (E.D. Va. 1998).
3

Cofield v. Crumpler, 179

That statute identifies the following as costs a court
may tax:
1) fees of the clerk and the marshal;
2) fees for printed or electronically recorded
3) transcripts necessarily obtained for use in the
case;

4) fees and disbursements for printing and witnesses;
5) fees for exemplification and the costs of making
copies of any materials where the copies are
necessarily obtained for use in the case;
6) docket fees under 28 U.S.C. § 1923; and
7) compensation of court-appointed experts and
interpreters, and salaries, fees, expenses, and
costs of special interpretation services under 28
U.S.C. § 1828.
Once the prevailing party meets its burden, the burden
shifts to the other side to identify “any impropriety of taxing
the proposed costs.”

Francisco v. Verizon S., Inc., --- F.R.D.

---, 2011 WL 781933, at *2 (E.D. Va. Mar. 2, 2011).

The Court’s

award of costs will only be disturbed on appeal for abuse of
discretion.

Id. (citing Herold v. Hajoca Corp., 864 F.2d 317,

321 (4th Cir. 1988)).
III. Analysis
Defendant seeks to recover a number of costs it claims
to have incurred defending this matter.
each in turn.

4

The Court considers

A.

Private Process Server Fees

HKD seeks $100.00 for the pro hac vice admissions of
its two out-of-state attorneys, $50.00 for each.

Plaintiff

claims that these attorneys were unnecessary to this matter and
that their fees need not be paid.
28 U.S.C. § 1920(1) provides that “[f]ees of the
clerk” are taxable as costs.

And this Court has found that pro

hac vice fees are taxable under this provision.

Synergistic

Int’l, L.L.C. v. Korman, No. 05-49, 2007 WL 517676, at *2 (E.D.
Va. Feb. 8, 2007) (awarding $150 in pro hac vice fees).
Plaintiff objects to fee taxation here because
Defendant had three local counsel working on this case besides
these two out-of-state attorneys, one of whom--John Einwechter-did not take any depositions or argue any motions, and ended up
being deposed in the case and serving as a witness.

Defendant’s

sole response to these arguments is that attorney necessity is
not a prerequisite to an award of pro hac vice fees.

The Court

agrees that pro hac vice fees are warranted for C. Allen Foster,
Defendant’s other out-of-state attorney.
As for Mr. Einwechter, however, this Court sees little
justification for his pro hac vice fee.

Mr. Einwechter was

retained to conduct HKD’s internal investigation of Plaintiff’s
allegations and issued a report that HKD later accidentally
turned over to Plaintiff during discovery in this matter.
5

[See

Dkt. 53.]

The accidental release of that report led this Court

to Order Mr. Einwechter’s immediate deposition in this case, on
January 16, 2009.
March 12, 2009.

[Dkt. 56.]

That deposition took place on

[See Dkt. 132, Ex. H.]

It was only after his

deposition that Defendant moved for Mr. Einwechter’s admission,
on March 18, 2009.

[Dkt. 76-1.]

Thus, it should have been clear by the time Mr.
Einwechter moved for admission that he had become a witness in
this case, which would have necessarily circumscribed his
ability to serve as counsel before this Court.
of Prof’l Conduct R. 3.7.)

(See Model Code

His pro hac vice admission therefore

seems unnecessary, and will not be taxed.
This Court will therefore award $50.00 in costs for
HKD’s pro hac vice fees.
B.

Private Process Server Fees

The next disputed cost is $2,699.00 for process server
fees, much of which was paid to private process servers, making
it not taxable in Plaintiff’s view.
Courts are split as to whether private process server
fees are taxable as “fees of the marshal.”

See Schwarz v.

Schwarz of Va., LLC v. Certain Underwriters at Lloyd’s, No.
6:07cv42, 2010 WL 452743, at *3 (W.D. Va. Feb. 8, 2010)
(collecting cases).

And while the Fourth Circuit has not spoken

on the issue, “a clear majority of circuit courts recognize
6

private process server fees [as] taxable against the nonprevailing party.”

Id. (comparing cases from the Sixth,

Eleventh, Seventh, Second, Ninth circuits with the Eighth
Circuit).

This Court, too, has permitted such fees.

O’Bryhim

v. Reliance Standard Life Ins. Co, 997 F. Supp. 728, 738 (E.D.
Va. 1998).

And it will permit them here where appropriate.
Plaintiff further argues that fees should not be

taxed for subpoenas that “were not necessarily obtained for use
in this case” and involved persons with little involvement with
the transactions in question.

Defendant responds that

“necessity is not a factor in considering whether to award
process server fees.”

(Reply at 4.)

While the Fourth Circuit

appears not to have spoken on the issue, other courts have
considered whether such fees are “reasonably necessary.”
Trading Techs Int’l, Inc. v. eSpeed, Inc., --- F. Supp. 2d --- ,
2010 WL 4449720, at *8 (N.D. Ill. Oct. 29, 2010); Ortho-McNeil
Pharm., Inc. v. Mylan Labs. Inc., No. 1:02cv32, 2008 WL 7384877,
at *3 (N.D. W. Va. Aug. 18, 2008), aff’d in relevant part,
vacated in part on other grounds, 569 F.3d 1353 (Fed. Cir.
2009); George v. GTE Directories Corp., 114 F. Supp. 2d 1281,
1299 (M.D. Fla. 2000); Gorelangton v. City of Reno, 638 F. Supp.
1426, 1434 (D. Nev. 1986).

This Court agrees that such fees

must have been reasonably necessary to Defendant at the time
they were incurred.
7

Thus, turning to the first subpoena at issue, for Mr.
Thompson, Plaintiff argues that Mr. Thompson had no knowledge of
facts related to this case and was deposed regarding his
interactions with Mann two decades ago, when both worked for the
Los Angeles Sheriff’s Department.

(Opp. at 5.)

Plaintiff also

notes that it argued in a motion in limine (that was not
granted) that Mr. Thompson’s deposition was unavailable and that
HKD did not rely on any information from him in its motion for
summary judgment.

Id.

The Court finds the latter two arguments

wholly unpersuasive and will focus on the reasonable necessity
of Mr. Thompson to this case.

Defendant argues that Mr.

Thompson was deposed to obtain additional information regarding
Plaintiff’s background in light of information that Plaintiff
was under investigation for his conduct relating to an unrelated
weapons sale to the Blue Lake Police Department.

(Reply at 4.)

This Court finds that justification sufficient to warrant his
service.
Regarding Ms. Mokler, Plaintiff alleges that her
relevance to the case is as a custodian of records again
relating to Plaintiff’s police service twenty years ago.
at 5.)

(Opp.

Defendant again responds that, like Mr. Thompson, her

deposition was needed to investigate Plaintiff’s background.
(Reply at 4.)

The Court again agrees with Defendant.

8

As for Dr. Williamson, a marriage counselor, and Mrs.
Mann, Plaintiff’s wife, Defendant argues that their testimony
was useful to understanding Plaintiff’s claims for damages.
This Court again agrees, noting that Plaintiff sought damages
for “mental and emotional distress, embarrassment, and
humiliation, career damage, and harm to reputation.”

[Dkt. 7 at

19.]
Plaintiff also takes issue with E. Huth, an officer at
Plaintiff’s current employer.

(Opp. at 5.)

Defendant responds

that essentially it was seeking to depose Plaintiff’s employer,
and that Mr. Huth appeared first for the deposition, at which it
became clear that an additional witness, Mr. Augustine, would
need to be deposed.

(Reply at 5.)

This Court finds these

depositions reasonably necessary.
Next, Plaintiff argues that Messrs. Papac and
Gunderson were never deposed and therefore should not be a
source of fees in this case.

Here the Court agrees; Defendant’s

briefing provides the Court with virtually no justification for
their depositions, besides the insinuation that they were
relevant to Defendant’s background.

(See Reply at 4.)

Without

at least some showing as to why these people were relevant to
this action, this Court will not award these fees.
That leaves Mr. Dallas.

Plaintiff argues that his

only relevance to this case was that his testimony actually
9

disproved a claim that Plaintiff had disparaged HKD.
6.)

(Opp. at

Perhaps so, but surely Defendant did not originally seek to

depose Mr. Dallas for the purpose of refuting its own positions.
What matters is whether, at the time Mr. Dallas was served, his
testimony appeared reasonably necessary to Defendant.

And

because Defendant expected Mr. Dallas to corroborate an
allegation that Plaintiff had disparaged it in some way, his
testimony was reasonably necessary to Defendant at the time it
served him.

Thus, this Court will award his service fee.

Plaintiff additionally objects to certain “rush” fees
associated with the delivery of a series of Defendant’s
subpoenas, claiming that such fees “are not taxable.”
6.)

(Opp. at

Plaintiff cites two cases for the proposition that rush

fees are not taxable, neither of which hold any such thing.

In

the first, Kennedy v. Joy Technologies, Inc., 484 F. Supp. 2d.
502 (W.D. Va. 2007), the Court did not find that “‘extra costs
associated with rush service fees’ are not taxable costs,” as
Plaintiff suggests (see Opp. at 6), the Court instead stated
“in this instance, I will not allow the extra costs associated
with rush service fees . . . to be taxed.”
504 (emphasis added).

484 F. Supp. 2d at

The Court chose not to award costs for

rush fees in that instance, but it did not state a general rule
that rush fees are never taxable.

10

As for Southprint Inc. v. H3, Inc., No. 4:02cv38, 2005
WL 3177627 (W.D. Va. Nov. 23, 2005), the Court likewise did not
find that “rush fees are not taxable,” (see Opp. at 6), it
instead found that, “as [the defendant] has not provided any
reasonable justification for the need to incur additional fees
for rush or expedited service, . . . those costs are not
recoverable.”

2005 WL 3177627, at *5.

That finding indicates

that, where reasonably justified, rush fees are indeed taxable.
Indeed that standard is borne out by the case law.

See, e.g.,

Ferris v. AAF-McQuay, Inc., 5:06cv82, 2008 WL 495656, at *1
(W.D. Va. Feb. 21, 2008) (“[A]ncillary costs such as extra
copies and expedited production are not allowed absent a showing
of necessity.”) (emphasis added).

This Court thus considers

whether rushed service was necessary in this case.
Defendant argues first that its four rush deposition
subpoenas were issued between March 9 and March 19, shortly
before the March 27 close of discovery, and that the rush fee
ensured service within 24 hours, rather than two to three days,
and thus ensured that it would meet the discovery deadline.
(Reply at 5 n.6.)

Defendant argues second that its four trial

subpoenas were served on a rush basis to ensure its recipients’
attendance at trial and compliance with its service deadline.
Id.

The Court finds these justifications sufficient and will

award rush fees in this instance.
11

C.

Summary Judgment Hearing Transcript

Defendant seeks reimbursement for the transcript from
its hearing on summary judgment as a fee for “printed or
electronically recorded transcripts necessarily obtained for use
in this case.”

28 U.S.C. § 1920(2).

Plaintiff opposes this

fee, arguing that the transcript was unnecessary in light of
Defendant’s obtaining summary judgment.

But as before, the

question is not whether the transcript is necessary today, it is
whether that transcript was reasonably necessary for Defendants
at the time they ordered it.

And here, Defendant claims that

the transcript was reasonably necessary to their trial
preparation, especially as this Court’s decision on summary
judgment was issued just one week before trial was to begin.
The Court agrees, and will reward the requested amount of
$164.25.
D.

Deposition Transcripts

As with service costs, the parties dispute whether
certain deposition transcripts were reasonably necessary to this
case.

For the reasons explained regarding those service costs,

the Court finds that these depositions were reasonably necessary
to Defendant at the time they were taken, and therefore that
they are taxable.
Plaintiff also protests rush fees associated with
these transcripts, arguing again that rush fees are not taxable.
12

As the Court has already explained, however, rush fees are
indeed taxable where reasonably justified.

And here, Defendant

argues that the fees are justified by the fact that most
depositions occurred two or fewer weeks before Defendant’s
summary judgment motion was due, meaning that the transcripts
were needed as soon as possible.

(Reply at 7 n.8.)

This Court

finds that justification adequate and will therefore tax the
full amount of $16,577.55.
E.

Videography Fees

Defendant is seeking $3,212.50 in videography fees for
the depositions in this case.

Plaintiff disputes the necessity

of these videography services, particularly for Mr. Galvin, who
Plaintiff claims was videotaped for impeachment at trial.
at 9.)

(Opp.

Fees for videography of a deposition are only available

where “necessarily obtained for use in the case.”

Cherry v.

Champion Int’l Corp., 186 F.3d 442, 449 (4th Cir. 1999) (citing
28 U.S.C. § 1920(2)).

Defendant argues that videography was

necessary for witnesses Gundersen, Aliveto, Mokler, and
Thompson, because all resided and worked outside the Court’s
subpoena power, making their taped testimony potentially
necessary for use at trial.

Plaintiff does not respond to these

claims.
Similarly, Defendant argues that Mr. Galvin’s
deposition needed to be taped because he, as a Secret Service
13

officer, might not be permitted to testify in Court.

Here

Plaintiff responds that in fact the Secret Service agreed to
produce Mr. Galvin at trial, eliminating any need for a
videotape.

(Opp. at 10.)

Defendant does not respond to this

argument, which, if true, undermines its claim that this
videography was reasonably necessary.

This Court therefore will

not award his videotaping fee.
Finally, Defendant claims that video was required for
its deposition of Plaintiff for effective trial preparation and
for potential impeachment at trial.

Plaintiff argues nothing in

response, and this Court agrees with Defendant.
Thus, this Court will tax $3,112.50, which includes
fees for all but Mr. Galvin’s videotaped testimony.
F.

Printing and Witness Disbursement Fees

Section 1920(3) permits the Court to tax “fees and
disbursements for printing and witnesses.”
$1,243.16 in such fees.

Defendant seeks

Plaintiff argues that certain witnesses

should be precluded from taxation, again because their testimony
was allegedly unnecessary and irrelevant.

(Opp. at 10.)

Because this Court has already found otherwise, it will tax
these fees.
G.

Paper Copying Costs

Defendant seeks $7,256.20 in paper copying costs
pursuant to 28 U.S.C. § 1920(4).
14

Section 1920(4) refers to fees

for “the costs of making copies of any materials where the
copies are necessarily obtained for use in the case.” (emphasis
added).

“The burden is on the party seeking recovery of

photocopying costs to demonstrate the reasons for each copying
charge.”

Ford v. Zalco Realty, Inc., 708 F. Supp. 2d 558, 563

(E.D. Va. 2010).

Two sets of copies are at issue here, those

produced by an outside copying vendor, and those produced in
house.

(BOC at 11-12.)

The Court considers each in turn.

For the outside copies, Plaintiff argues that copying
costs are only taxable where “used as court exhibits or [where]
furnished to the court or opposing counsel.”

(Opp. at 10

(citing Sun Pub. Co. v. Mecklenburg News, Inc., 594 F. Supp.
1512, 1524 (E.D. Va. 1984)).)

The Court agrees.

See, e.g.,

Ford, 708 F. Supp. 2d at 563.

In light of this rule, Plaintiff

claims that copies of exhibits for preparation of J. Mann and R.
Edelman’s depositions are not taxable, as neither exhibit was
obtained for the Court or for opposing counsel.

(Opp. at 11.)

Defendant presents no argument to the contrary, and this Court
therefore will not tax these items.
Plaintiff claims that the remaining outside cost-copies of HDK’s trial exhibits “obtained for the Court and for
Plaintiff”--must also be precluded from taxation because
Defendant failed to itemize the costs incurred for these
exhibits.

(Opp. at 11.)

It is clear that, with respect to
15

copying costs, mere submission of a receipt, without any
specification as to “what was copied,” does not warrant
taxation.

Ford, 708 F. Supp. 2d at 563.

The receipt submitted

here, like that in Ford, does not specify what was copied; it
just gives a total dollar amount.

(See BOC Ex. D-1.)

Thus,

this Court will not tax these copying costs, meaning that none
of Defendant’s outside copying costs ($2,303.80) will be taxed
in this case.
Turning now to in-house copying costs, Defendant
submits a set of itemized costs, totaling at $435.90, as well as
a set of non-itemized costs, in the amount of $4,516.50.
Plaintiff argues that, itemized or not, in-house copies are
simply not taxable unless incurred for use at trial or provided
to opposing counsel or the Court.

(Opp. at 11.)

Courts seem to

differ on this issue; some, cited by Plaintiff, appear to
support Plaintiff’s suggested rule.

See Thomas v. Treasury

Mgm’t Ass’n, Inc., 158 F.R.D. 364, 372 (D. Md. 1994) (finding
that costs “for in-house photocopying . . . are, in the Court’s
view, inappropriate”) (citing McIlveen v. Stone Container Corp.,
910 F.2d 1581, 1584 (7th Cir. 1990) (finding copying of court
filings for counsel’s own use not taxable)).
cited by Plaintiff, take a different view.

Yet others, not
See, e.g.,

Rodriguez-Garcia v. Davila, 904 F.2d 90, 100 (1st Cir. 1990)
(“While appellants argue that [Section 1920(4)] should be
16

limited to copy costs for documents actually filed, we decline
to adopt so narrow an interpretation of the statute.

Instead,

we find that if the costs were reasonably necessary to the
maintenance of the action, then they are allowable.”).
This Court considered this issue in Jefferson v.
Briner, Inc., No. 3:05cv652, 2006 WL 2850648 (E.D. Va. Sept. 29,
2006), adopting the position that “copying costs are necessarily
incurred in the pursuit of a successful effort, whether or not
the materials are actually made part of the record.”

Id. at *2.

The Court refused to tax costs because it was unable, in that
instance, to distinguish between “necessary” expenses and those
obtained for the party’s convenience.

Id.; see also Simmons v.

O’Malley, 235 F. Supp. 2d 442, 444 (D. Md. 2002) (“Copies
obtained merely for the convenience of plaintiff’s counsel . . .
ordinarily are not allowed.”)

This Court will apply this

reasoning to Defendant’s submission in this case.
Starting with the itemized in-house copies, having
carefully reviewed Defendant’s itemized list, this Court finds
the listed expenses to have been necessarily incurred in the
pursuit of a successful effort in this case, with four
exceptions: $0.90 for “provision of documents to experts,” $4.50
for “Attorney Review of motion to compel,” $11.25 for “Attorney
review of opposition to Motion for Summary Judgment,” and $0.30,
for Mr. Einwechter’s pro hac vice motion, in the latter case
17

because this Court is finding Mr. Einwechter’s pro hac vice fee
untaxable.

(See BOC Ex. D-2.)

For these four exceptions, this

Court is unable to determine from the information given whether
these copies were made out of necessity or convenience.

Thus,

the Court will tax $418.95 for itemized in-house copies.
As for the remaining in-house copies, as with the
Court in Simmons, this Court does not “question[] counsel’s good
faith” in submitting these costs as legitimate, however “there
does not appear to be a sufficient showing for the [C]ourt to
exercise its discretion to determine that these costs are
properly reimbursable rather than incurred simply as a
‘convenience’ to counsel.”

235 F. Supp. 2d at 444.

Defendant

presents no explanation for the necessity of these copies,
except perhaps the insinuation that its 25% deduction was for
copies made for the convenience of counsel, implying perhaps
that 75% of its copies were not made for convenience of counsel.
While this Court recognizes that it may be practically difficult
in many cases to explain copying costs at a level that meets the
standard for necessity, Defendant’s submission in this case
falls well short of that standard.

As in Simmons, “[i]n the

absence of more specific explanation, these costs will not be
taxed.”

Id.
Thus, this Court will tax $418.95 in paper copying

costs.
18

H.

Electronic Copying Costs

Defendant seeks $36,676.34 for costs paid to an
outside vendor for preparing its electronic document production.
The vendor compiled electronic files into an electronic database
of documents to be turned over to Plaintiff, converted the files
from their native format to TIFF format, branded the images with
Bates numbers, and burned them onto CDs for production.
13.)

(BOC at

Allegedly, these documents were always in an electronic

format.

Id.

The costs were $1,561.34 associated with the

actual production of documents to Plaintiff and $35,115.00 for
the creation of the database.

(BOC at 14.)

Plaintiff contests

all of these costs.1
The parties spend significant portions of their
analyses discussing Fells v. Virginia Department of
Transportation, 605 F. Supp. 2d 740 (E.D. Va. 2009).

In Fells,

the Defendant sought costs of “electronic records initial
processing, Metadata extraction, [and] file conversion.”
743.

Id. at

The Court distinguished these tasks, which it described as

creating electronically searchable documents, from scanning

1
There is some case law support for the notion that no discovery costs are
recoverable under Section 1920(4), given that “the producing party possesses
the original documents,” meaning that those documents may not be considered
“obtained for use in the case.” See Ortho-McNeil, 2008 WL 7384877, at *8
(stating that discovery costs are not recoverable “[a]s a general rule” for
this reason). This Court disagrees with that finding, however, as Section
1920(4)’s language certainly does not specify which party the copied
documents must be “obtained” by. See, e.g., Gottlieb v. Convergent Techs.,
942 F.2d 791, 1991 WL 164258, at *10 (9th Cir. Aug. 26 1991) (“This
construction of § 1920(4) appears novel and unduly narrow.”).

19

(i.e., converting a paper document into an electronic document),
which is more akin to copying. Id.

“In essence,” the Court

said, “defendant seeks to recover the costs of creating
electronically searchable documents.”

Id.

And the Court

ultimately found that creating electronically searchable
documents is not taxable activity under Section 1920(4)’s
language, which permits recovery for expenses “for
exemplification and . . . making copies of any materials where
the copies are necessarily obtained for use in the case.”2
The distinction in Fells between creating and copying
is useful here.

It strikes the Court as clear that, when

starting with an electronic document, the process of burning the
document onto a CD to turn over in discovery is “copying.”

And

it likewise seems clear that where the document copied is
responsive to a discovery request, it is “necessarily obtained
for use in the case.”

See 28 U.S.C. § 1920(4).

Thus, having

carefully reviewed Defendant’s production costs in this case,
this Court finds that they qualify as “copying” for purposes of
§ 1920(4), and therefore will tax $1,561.34.
As for the costs of creating Defendant’s database,
this Court is not convinced that such tasks as “Searching and
2

Although circuits are split concerning the meaning of “exemplification,”
neither operative definition appears applicable to the electronic services at
issue here. Compare Cefalu v. Vill. of Elk Grove, 211 F.3d 416, 427 (7th
Cir. 2000) (exemplification “signifies the act of illustration by example”)
with Arcadian Fertilizer, L.P. v. MPW Indus. Servs., Inc., 249 F.3d 1293,
1296 (11th Cir. 2001) (exemplification is “[a]n official transcript of a
public record, authenticated as a true copy for use as evidence”).

20

Deduping,” and “Creation of Native File Database with Full Text
and Metadata Extraction,” qualify as “copying” as opposed to
“creating.”

See Fells, 605 F. Supp. 2d at 743.

As in Fells,

this Court will not extend the Section 1920(4)’s language to
costs not enumerated under that section.

Id. (citing Crawford

Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 442-45 (1987))
(federal courts cannot “exceed the limitations explicitly set
out in [Section 1920] without plain evidence of congressional
intent”).
Here, Defendant notes that Congress revised Section
1920 in October 2008 to permit taxation for “making copies of
any materials where the copies are necessarily obtained . . .”
(emphasis added), whereas the statute previously referred only
to “copies of papers.”

That language perhaps indicates

legislative openness towards taxation of copies of things
besides paper, but it still requires copying.

And this Court

finds that, in this instance, Defendant has not shown that its
costs of creating its electronic database from already existing
electronic documents qualify as copying costs within Section
1920(4).

Thus, this Court will not tax costs for creation of

the database.

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I.

Taxed Costs

Thus, having carefully considered the briefing at
issue in this case, this Court will tax the following costs:
Service taxed
Pro hac vice fees
Service fees
Summary judgment hearing transcript
Deposition transcripts
Videography fees
Paper and disbursement fees
Paper copying fees

III.

Amount Taxed
$50.00
$2,324.00
$164.25
$16,577.55
$3,112.50
$1,243.16
$418.95
TOTAL
$23,890.41

Conclusion

For these reasons, the Court will tax an amount of
$23,890.41.

An appropriate Order will issue.

April 28, 2011
Alexandria, Virginia

/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE

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