On May 4, 2018, Magistrate Judge David L. Horan of the U.S. District Court for the Northern District of Texas rejected an attempt by the defendants to claim the costs of creating and maintaining a database of digital documents under 20 U.S.C. Section 1920.
Under Judge Horan’s ruling, such activities are not “printing” under the statute and therefore may not be reimbursed.
Under 20 U.S.C. Section 1920(3)-(4), any federal court has the power to tax as costs “fees and disbursements for printing,” and “the costs of making copies of any materials where the copies are necessarily obtained for use in the case.” Regarding the Section 1920(3) argument that such fees amounted to “printing,” Judge Horan held that Congress did not intend for “printing” to cover electronic databases, and similarly refused to reimburse the defendants for the cost they would have incurred had they printed the contents of the database in hard copy. Under the court’s analysis, a 2012 Supreme Court case (Taniguchi v. Kan Pacific Saipan, Ltd.) required the court to narrowly interpret Section 1920’s use of the word “printing.” Regarding the Section 1920(4) argument that loading documents to the electronic database amounted to “making copies,” the court held that the defendants failed to show that the copies were “necessarily obtained for use in the case.” In support of his position, Judge Horan quoted the Ninth Circuit:
A lawyer may review electronically stored information for privilege either by viewing the original documents on the client’s computer or, alternatively, by viewing copies uploaded to the lawyer’s computer. Although the latter method of review requires the creation of a copy, the ability to conduct the review by looking at the original document establishes that the uploaded copy was not necessarily obtained for use in the case. (Emphasis added.)
"Defendants' choosing to proactively gather any and all relevant and discoverable materials and copy them onto an electronic database for potential production in discovery—although perhaps efficient, convenient, and cost-conscious—does not automatically render the copying of such materials taxable under Section 1920(4) without further explanation."
Judge Horan wrote further, “Defendants’ choosing to proactively gather any and all relevant and discoverable materials and copy them onto an electronic database for potential production in discovery—although perhaps efficient, convenient, and cost-conscious—does not automatically render the copying of such materials taxable under Section 1920(4) without further explanation.” (Emphasis added.)
The case is Gonzales v. Pan Am. Labs., LLC, No. 3:14-cv-2787-L (N.D. Tex. May 4, 2018), report and recommendation adopted, No. 3:14-cv-2787-L (N.D. Tex. May 22, 2018). A copy of the opinion can be found here.
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