Electronic Discovery — Almost No ESI-Related Costs Are Recoverable as “Costs” under 28 U.S.C. § 1920 — Meaning of “Making Copies” and “Exemplification”
Country Vintner of NC, LLC v. E & J Gallo Winery, Inc., 718 F.3d 249 (4th Cir. 2013):
In this case we clarify what expenses related to electronically stored information ("ESI") are taxable under the federal taxation-of-costs statute as "[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case." 28 U.S.C. § 1920(4). The district court entered an order taxing only the costs of converting electronic files to non-editable formats, and transferring files onto CDs. Country Vintner of N.C., LLC v. E. & J. Gallo Winery, Inc., No. 5:09-cv-326-BR, 2012 U.S. Dist. LEXIS 108905, 2012 WL 3202677, at *3 (E.D.N.C. Aug. 3, 2012). Asserting the district court erred or otherwise abused its discretion, Appellant E. & J. Gallo Winery, the prevailing party in this case, noted its timely appeal from the district court's order. For the following reasons, we affirm. ***
Less than two months after Gallo began producing documents, the district court granted Gallo's motion to dismiss Country Vintner's claim under the North Carolina Unfair and Deceptive Trade Practices Act. The parties then filed cross-motions for summary judgment on the remaining Wine Act claims, and the court granted summary judgment in favor of Gallo. Upon Country Vinter's appeal of the order granting summary judgment in favor of Gallo, we affirmed. Country Vintner of N.C., LLC v. E & J Gallo Winery, Inc., 461 F. App'x 302, 308 (4th Cir. 2012).
Gallo thereafter filed in the district court a bill of costs, seeking to recover $111,047.75 from Country Vintner for charges related to ESI. Gallo sought costs in the following six categories:
First, $71,910 for "flattening" and "indexing" ESI. J.A. 1229-30. This "initial processing" of data involved decompressing container files (e.g., ZIP files or Microsoft PST files); making the data searchable by extracting text and creating Optical Character Recognition3 for text that could not be extracted; indexing the data; removing system files that were known not to contain any user-generated content; and removing duplicate files. Id. 1224.
Second, $15,660 for "Searching/Review Set/Data Extraction." J.A. 1229-30. This process involved extracting metadata4 from the documents; "unitiz[ing]" electronic documents by "locat[ing] logical document breaks for purposes of reviewing, searching, and production"; creating an index of metadata for every electronic document; and exporting and loading the electronic documents and metadata onto a "review/production platform." Id. at 1225.
Footnote 4. Metadata is simply "data that provides information about other data." Merriam-Webster Dictionary, available at http://www.merriam-webster. com/dictionary/metadata (last visited April 9, 2013).
"Metadata may be totally innocuous, such as formatting instructions and margin determinations, but sometimes metadata provides crucial evidence that is not available in a paper document." "Metadata may reveal who worked on a document, the name of the organization that created or worked on it, information about prior versions of the document, recent revisions, and comments inserted in the document during drafting or editing . . . . The hidden text may reflect editorial comments, strategy considerations, legal issues raised by the client or the lawyer, or legal advice provided by the lawyer." Metadata may provide information that a paper document would not provide or information that differs from a paper document. Metadata may also reveal that a document has been changed or backdated.
Jennifer M. Smith, Electronic Discovery and the Constitution: Inaccessible Justice, 6 J. Legal Tech. Risk Mgmt. 122, 138-39 (2012) (ellipsis in original) (footnotes omitted).
Third, $178.59 for "TIFF Production" and "PDF Production." J.A. 1229-31. This process involved converting original or "native" documents to a .tif5 or .pdf format6 to render them non-editable. Id. at 1225.
Fourth, $74.16 for electronic "Bates Numbering." J.A. 1230. In this "higher-tech version" of Bates stamping, the TIFF or PDF documents were "endorsed . . . with a unique number that allow[ed] all parties to track the document[s]." Id. at 1226.
Fifth, $40 for copying images onto a CD or DVD. J.A. 1226, 1230.
Sixth, $23,185 for "management of the processing of the electronic data," "quality assurance procedures," "analyzing corrupt documents and other errors," and "preparing the production of documents to opposing counsel." J.A. 1227, 1232-37. ***
The district court granted in part and denied in part the bill of costs. Adopting the reasoning of the Third Circuit, the court concluded that, under 28 U.S.C. § 1920(4), "a prevailing party may recover costs associated with copying or duplicating its files, but it may not receive reimbursement for any other ESI-related expenses." Country Vintner of N.C., LLC, 2012 U.S. Dist. LEXIS 108905, 2012 WL 3202677, at *2 (citing Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158 (3d Cir. 2012)). The court found that, in this case, "the only tasks that involve[d] copying [we]re the conversion of native files to TIFF and PDF formats and the transfer of files onto CDs." 2012 U.S. Dist. LEXIS 108905, [WL] at *3. The court concluded that Gallo was entitled to recover $218.59 in ESI-related costs:***.
The court noted that "it [was] possible that the bill of costs . . . contain[ed] other ESI-related expenses that [were] taxable," but concluded that such costs were not "readily discern[ able]" because "Gallo ha[d] included various multi-task entries." Country Vintner of N.C., LLC, 2012 U.S. Dist. LEXIS 108905, 2012 WL 3202677, at *3 n.5. The district court also concluded that none of the "the ESI-related costs in this case . . . qualif[ied] as fees for exemplification under any established construction of the term." 2012 U.S. Dist. LEXIS 108905, [WL] *2 n.4. Approving $350 for "[f]ees of the clerk," the court awarded total costs of $568.59. 2012 U.S. Dist. LEXIS 108905, [WL] at *3. ***
On appeal, Gallo argues that 28 U.S.C. § 1920(4) allows recovery of its ESI processing charges and the district court erred in excluding them from the award of costs. Country Vintner counters that the district court properly denied these charges as outside the scope of § 1920(4). For the following reasons, we affirm the district court's order.
"Under Rule 54(d)(1) of the Federal Rules of Civil Procedure, costs 'should be allowed to the prevailing party' unless a federal statute provides otherwise." Williams v. Metro. Life Ins. Co., 609 F.3d 622, 636 (4th Cir. 2010) [*12] (quoting Fed. R. Civ. P. 54(d)(1)). "Section 1920 enumerates expenses that a federal court may tax as a cost under the discretionary authority found in Rule 54(d)." Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42, 107 S. Ct. 2494, 96 L. Ed. 2d 385 (1987).
"Generally, we review the district court's award of . . . costs for abuse of discretion." Bosley v. Mineral Cnty. Comm'n, 650 F.3d 408, 411 (4th Cir. 2011). "However, where a district court's decision is based on a premise and interpretation of the applicable rule of law, and the facts are established, we review that decision de novo." Id. (internal quotation marks omitted).
Because the parties dispute whether the district court properly interpreted § 1920(4), we apply de novo review. See Bosley, 650 F.3d at 411. See also Synopsys, Inc. v. Ricoh Co. (In re Ricoh Co. Patent Litig.), 661 F.3d 1361, 1364 (Fed. Cir. 2011) ("[W]hether a particular expense falls within the purview of section 1920, and thus may be taxed in the first place, is an issue of statutory construction, subject to de novo review.").
The taxation-of-costs statute, 28 U.S.C. § 1920, sets forth "[t]he costs that may be awarded to prevailing parties in lawsuits brought in federal court." Taniguchi v. Kan P. Saipan, Ltd., 132 S. Ct. 1997, 1999-2000, 182 L. Ed. 2d 903 (2012). In deciding whether subsection (4) permits the taxation of ESI processing charges, we follow the Supreme Court's example and begin with a brief overview of the statute. See id. at 2001-02.
"At common law, costs were not allowed," Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975), but "federal courts in the early years . . . award[ed] costs in the same manner as the courts of the relevant forum State," Taniguchi, 132 S. Ct. at 2001. This resulted in "great diversity in practice among the courts," with "losing litigants" often "unfairly saddled with exorbitant fees for the victor's attorneys." Alyeska Pipeline Serv. Co., 421 U.S. at 251.
In 1853, Congress enacted a predecessor to § 1920 "to standardize the costs allowable in federal litigation," Alyeska Pipeline Serv. Co., 421 U.S. at 251, and "simplify the taxation of fees, by prescribing a limited number of definite items to be allowed," Cong. Globe, 32nd Cong., 2d Sess. App. 207 (1853) (statement of Sen. Bradbury). See also id. (noting the lack of a "uniform rule . . . for the regulation of . . . costs," and the bill's purpose to "prescribe the costs which shall be taxed and recovered"). "The result was a far-reaching Act specifying in detail the nature and amount of the taxable items of cost in the federal courts." Alyeska Pipeline Serv. Co., 421 U.S. at 251-52. The 1853 act provided that
[t]he bill of fees of clerk, marshal, and attorneys, and the amount paid printers, and witnesses, and lawful fees for exemplifications and copies of papers necessarily obtained for use on trial in cases where by law costs are recoverable in favor of the prevailing party, shall be taxed by a judge or clerk of the court, and be included in and form a portion of a judgment or decree against the losing party.
Act of Feb. 26, 1853, 10 Stat. 161, 168 (emphasis added). The statute's "comprehensive scope" and "the particularity with which it was drafted demonstrated . . . that Congress meant to impose rigid controls on cost-shifting in federal courts." Crawford Fitting Co., 482 U.S. at 444.
"The 1853 Act was carried forward in the Revised Statutes of 1874 and by the Judicial Code of 1911." Alyeska Pipeline Serv. Co., 421 U.S. at 255. "Its substance, without any apparent intent to change the controlling rules, was also included in the Revised Code of 1948 as 28 U.S.C. §§ 1920 and 1923(a)." Id. at 255 (footnotes omitted).
The 1948 version of § 1920 provided that
[a] judge or clerk of any court of the United States may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title.
62 Stat. 955 (1948) (emphasis added). In 1978, Congress amended the statute to add a sixth category of taxable costs:
(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of [title 28].
Pub. L. No. 95-539, 92 Stat. 2040, 2044 (1978).
The statute remained unchanged until 2008, when Congress updated subsections (2) and (4) to allow the taxation of:
(1) [f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case; [and]
* * *
(2) [f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case[.]
Judicial Administration and Technical Amendments Act of 2008, Pub. L. No. 110-406, 122 Stat. 4291, 4292 (2008) (codified at 28 U.S.C. § 1920(2) & (4)) (emphasis added).
These amendments originated with the Judicial Conference of the United States (the "Judicial Conference") and its Committee on Court Administration and Case Management (the "Committee"). Judicial Conference, Report of the Proceedings of the Judicial Conference of the United States 9-10 (March 18, 2003) [hereinafter "Judicial Conference Report"]; 28 U.S.C. § 1920(2) & (4). Sometime before December 2002, a former magistrate judge had asked the Committee to consider "proposing amendments to 28 U.S.C. § 1920 that would allow expenses associated with new courtroom technologies to be included in the taxing of litigation costs." Committee on Court Administration and Case Management, Report of the Judicial Conference, Committee on Court Administration 3 (March 2003) [hereinafter "Committee Report"].
In December 2002,
the Committee considered whether technological advances that ha[d] occurred over the past twenty-five years ma[d]e it appropriate to reevaluate the cost provisions in 28 U.S.C. § 1920, so that recovery for costs associated with many litigation tools commonly used [in 2002], including videotaped depositions or electronically presented evidence, might be permitted.
Committee Report 3-4. While the Committee "agreed that § 1920 [did] not address many of the technology expenses that [we]re . . . often expended in federal litigation," it "was concerned . . . that the charges for these new expenses could dramatically expand the intention of the statute, which was to allow the taxing of costs in a very limited way." Id. at 4.
Therefore, the Committee decided to recommend that the Judicial Conference endorse two limited statutory amendments to 28 U.S.C. § 1920. The first would amend subsection (2) to recognize the availability of transcripts in electronic form. The second would expand the concept of "papers" in subsection (4) in order to reflect the decreasing use of paper and the increasing use of technology in creating, filing, and exchanging court documents. The Committee rejected the concept of an amendment to permit the taxing of costs associated with the use of technology to create, assist, enhance or present materials during a trial.
Id. In March 2003, the Judicial Conference adopted the Committee's recommendation. Judicial Conference Report 10.
Congress enacted the proposed amendments verbatim, as part of the Judicial Administration and Technical Amendments Act of 2008. Judicial Conference Report 10; 28 U.S.C. § 1920(2) & (4). Senator Leahy, a co-sponsor of the bill, explained that the legislation aimed to "facilitate and update judicial operations," "improve judicial resource management and strengthen the constitutional protection of Americans' right to serve on juries," and "clarify existing [criminal] law to better fulfill Congress's original intent." 154 Cong. Rec. S9898 (Sept. 27, 2008) (statement of Sen. Leahy). In the House, Rep. Lofgren described the bill as a collection of "noncontroversial measures proposed by the Judicial Conference to improve efficiency in the Federal courts." 152 Cong. Rec. H10271 (Sept. 27, 2008) (statement of Rep. Lofgren). She also noted that the legislation would "mak[e] electronically produced information coverable in court costs." Id.
On appeal, Gallo seeks the $111,047.75 in ESI-related charges it initially sought, less (1) $218.59 the district court awarded, (2) $74.16 in charges for Bates numbering, and (3) $8,897 in "charges for any billable time" related to "Bates numbering, searching, or production-related activities." Opening Br. 22 & n.7. Gallo argues that the remaining $101,858 in "ESI processing charges" is taxable under 28 U.S.C. § 1920(4) as both "costs of making copies of any materials where the copies are necessarily obtained for use in the case," and "[f]ees for exemplification . . . of any materials." Id. at 18, 20. We are not persuaded by Gallo's arguments, but neither do we embrace wholesale Country Vintner's crabbed interpretation of the amended costs statute.
As a preliminary matter, we reject Country Vintner's contention that § 1920(4) applies only to the costs related to materials attached to dispositive motions or produced at trial. To the extent that Country Vintner has not waived this challenge, the argument fails on the merits. Although the original costs statute limited taxation to "lawful fees for exemplifications and copies of papers necessarily obtained for use on trial," 10 Stat. 161, 168 (emphasis added), the current statute more broadly permits taxation of "[f]ees for exemplification and the costs of making copies . . . necessarily obtained for use in the case," 28 U.S.C. § 1920(4) (emphasis added). Moreover, several circuits have found that § 1920(4) encompasses discovery-related costs.
Footnote 9. See In re Ricoh Co., Ltd. Patent Litig., 661 F.3d at 1365 (applying Ninth Circuit law) ("Under section 1920(4), exemplification and copying costs for producing documents in discovery are recoverable."); Rundus v. City of Dallas, Tex., 634 F.3d 309, 316 (5th Cir. 2011) ("[C]osts incurred merely for discovery . . . . are recoverable if the party making the copies has a reasonable belief that the documents will be used during trial or for trial preparation.") (internal quotation marks omitted); U.S. E.E.O.C. v. W & O, Inc., 213 F.3d 600, 623 (11th Cir. 2000) ("Copies attributable to discovery are a category of copies recoverable under § 1920(4).") (internal ] quotation marks omitted); Illinois v. Sangamo Constr. Co., 657 F.2d 855, 867 (7th Cir. 1981) (affirming taxation of costs of copying, inter alia, discovery documents because the "expense of copying materials reasonably necessary for use in the case are recoverable costs under 28 U.S.C. § 1920(4)," and "[t]he underlying documents need not be introduced at trial in order for the cost of copying them to be recoverable"). That some courts deny discovery costs as a matter of discretion does not mean that such costs are not recoverable under § 1920(4) as a matter of law. See Little Rock Cardiology Clinic PA v. Baptist Health, 591 F.3d 591, 601-02 (8th Cir. 2009) (affirming district court's refusal to tax certain discovery costs as a matter of discretion, without reaching the question of whether such costs are taxable as a matter of law).
Thus, the plain language and weight of authority establish that the costs of exemplifications and copies in discovery are taxable under § 1920(4).
Turning to the merits of Gallo's appeal, we must first determine whether Gallo's ESI processing charges constitute "costs of making copies . . . necessarily obtained for use in the case." 28 U.S.C. § 1920(4). We think not.
"As with any issue of statutory interpretation, we focus on the plain language of the statute, seeking first and foremost to implement congressional intent." WEC Carolina Energy Solutions LLC v. Miller, 687 F.3d 199, 203 (4th Cir. 2012) (internal quotation marks and ellipsis omitted). "To determine a statute's plain meaning, we not only look to the language itself, but also the specific context in which that language is used, and the broader context of the statute as a whole." In re Total Realty Mgmt., LLC, 706 F.3d 245, 251 (4th Cir. 2013) (internal quotation marks omitted).
Here, the relevant statutory language is "making copies." 28 U.S.C. § 1920(4). Because the term is not defined in the statute, we must apply "its ordinary meaning." Taniguchi, 132 S. Ct. at 2002.
bbbbbb "Copies" has appeared in the taxation statute since its enactment in 1853, when "copy" meant a "transcript,” [Benjamin Vaughan Abbott, Dictionary of Terms and Phrases Used in American or English Jurisprudence 287 (1879); John Walker, A Critical Pronouncing Dictionary 84 (1858); Samuel Johnson, A Dictionary of the English Language 151 (1853); Noah Webster, An American Dictionary of the English Language 192 (1830); George Crabb, A Dictionary of General Knowledge 110 (1830)], a "writing like another writing," [Noah Webster, An American Dictionary of the English Language 192 (1830)] or an "imitation." [Noah Webster, A Dictionary of the English Language, Abridged from the American Dictionary 91 (1850)]. Today, "copy" still refers to "an imitation, transcript, or reproduction of an original work."[Merriam-Webster Dictionary online, http://www.merriam-webster. com/dictionary/copy (last visited April 9, 2013). See also Oxford English Dictionary online, http://www.oed.com (enter "copy" in the "quick search" box and click on the first result) (defining "copy" as "[a] transcript or reproduction of an original") (last visited April 9, 2013)]. To "make" means "to cause to happen," [Merriam-Webster Dictionary online, http://www.merriam-webster. com/dictionary/make (last visited April 9, 2013)] "to bring into being by forming, shaping, or altering material," [id.] to "produce (a material thing)" [Oxford English Dictionary online, http://www.oed.com (enter "make" in the "quick search" box and click on the fourth result) (last visited April 9, 2013)] or to "construct" or "assemble." [Id.] Thus, "making copies" means producing imitations or reproductions of original works.
Although the ordinary meaning of the phrase is expansive, its application is limited by the "broader context of [§ 1920] as a whole." In re Total Realty Mgmt., LLC, 706 F.3d at 251. The Supreme Court has observed that taxable costs under the statute are "modest in scope" and "limited to relatively minor, incidental expenses." Taniguchi, 132 S. Ct. at 2006:
[Section] 1920 . . . lists such items as clerk fees, court reporter fees, expenses for printing and witnesses, expenses for exemplification and copies, docket fees, and compensation of court-appointed experts. Indeed, the assessment of costs most often is merely a clerical matter that can be done by the court clerk. Taxable costs are a fraction of the nontaxable expenses borne by litigants for attorneys, experts, consultants, and investigators. It comes as little surprise, therefore, that costs almost always amount to less than the successful litigant's total expenses in connection with a lawsuit.
Id. (internal quotation marks and citations omitted).
Footnote 18. In Taniguchi, the Court held that "compensation of interpreters"--added by the Court Interpreters Act as a taxable cost under § 1920(6)--"is limited to the cost of oral translation and does not include the cost of document translation." Taniguchi, 132 S. Ct. at 2000.
Gallo argues that its ESI-processing charges are taxable as fees for "making copies" under § 1920(4) because ESI has "unique features": ESI is "more easily and thoroughly changeable than paper documents," it contains metadata, and it often has searchable text.... Gallo contends that converting native files to PDF and TIFF formats "produce[ d] static, two-dimensional images that, by themselves, [we]re incomplete copies of dynamic, multi-dimensional ESI"; other "processing . . . was necessary to copy all integral features of the ESI." ... Gallo argues that it had to remove ESI from container files, extract and index text to make it searchable, copy metadata, and load the data onto a "review platform" to allow "the native files and their associated metadata [to] be viewed and their text [to] be searched as if the native files were being opened in the software applications that created them." Id. at 28-29. Gallo concedes that this process was far more involved than that necessary to copy paper documents but argues thatCountry Vintner counters that Gallo "distorts the plain meaning of the statute" and "misconstrue[s] the act of processing," which was "not required in order to produce copies to Country Vintner, only to assist Gallo with its review." Resp. Br. 17, 22 (emphasis in original). Country Vintner disputes that Gallo "had no choice but to process the ESI . . . in order to comply with its discovery obligations," because "Country Vintner never demanded that Gallo produce processed ESI replete with metadata and searchable text." Id. at 20. Country Vintner thus asks us to affirm the district court's adoption of the Third Circuit's approach in Race Tires America, Inc. v. Hoosier Racing Tire Corp.
just as copying a table or dress requires a different approach than copying a paper document, copying ESI also requires a different approach.
Id. at 26.
In Race Tires America, Inc., the Third Circuit held that, "of the numerous services [that] [electronic discovery] vendors [had] performed" in that case, "only the scanning of hard copy documents, the conversion of native files to TIFF, and the transfer of VHS tapes to DVD involved 'copying'" within the meaning of § 1920(4). Race Tires Am. Inc., 674 F.3d at 171. The court reasoned that
[s]ection 1920(4) does not state that all steps that lead up to the production of copies of materials are taxable. It does not authorize taxation merely because today's technology requires technical expertise not ordinarily possessed by the typical legal professional. It does not say that activities that encourage cost savings may be taxed. Section 1920(4) authorizes awarding only the cost of making copies.
Id. at 169 (footnote omitted). The court recognized that "extensive 'processing'" may be "essential to make a comprehensive and intelligible production" of ESI. Id.
Hard drives may need to be imaged, the imaged drives may need to be searched to identify relevant files, relevant files may need to be screened for privileged or otherwise protected information, file formats may need to be converted, and ultimately files may need to be transferred to different media for production.
Id. Nonetheless, the court reasoned, "that does not mean that the services leading up to the actual production constitute 'making copies.'" Id.
The process employed in the pre-digital era to produce documents in complex litigation similarly involved a number of steps essential to the ultimate act of production. First, the paper files had to be located. The files then had to be collected, or a document reviewer had to travel to where the files were located. The documents, or duplicates of the documents, were then reviewed to determine those that may have been relevant. The files designated as potentially relevant had to be screened for privileged or otherwise protected material. Ultimately, a large volume of documents would have been processed to produce a smaller set of relevant documents. None of the steps that preceded the actual act of making copies in the pre-digital era would have been considered taxable. And that is because Congress did not authorize taxation of charges necessarily incurred to discharge discovery obligations. It allowed only for the taxation of the costs of making copies.
Id. The Third Circuit further reasoned that the Supreme Court has "accorded a narrow reading to the cost statute in other contexts," and "[n]either the degree of expertise necessary to perform the work nor the identity of the party performing the work of 'making copies' is a factor that can be gleaned from § 1920(4)." Id. at 169, 171. "Nor may the courts invoke equitable concerns . . . to justify an award of costs for services that Congress has not made taxable." Id. at 170.
We find the Third Circuit's reasoning persuasive. The court properly took into account the statute's history, its plain language, and the Supreme Court's narrow contemporary interpretation of the costs taxable under § 1920. All of these considerations support the conclusion that, in this case, subsection (4) limits taxable costs to those identified by the district court: converting electronic files to non-editable formats, and burning the files onto discs.
Footnote 19 We are mindful that converting ESI from editable to non-editable formats, or copying ESI in its 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. This case does not fall within those limited circumstances.
That Gallo will recover only a fraction of its litigation costs under our approach does not establish that our reading of the statute is too grudging in an age of unforeseen innovations in litigation-support technology. The Supreme Court has emphasized that "costs almost always amount to less than the successful litigant's total expenses," and § 1920 is "limited to relatively minor, incidental expenses." Taniguchi, 132 S. Ct. at 2006. Moreover, "the presumption is that the responding party must bear the expense of complying with discovery requests." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358, 98 S. Ct. 2380, 57 L. Ed. 2d 253 (1978). To the extent that such costs are excessive, a party "may invoke the district court's discretion under [Fed. R. Civ. P. 26] to grant orders protecting [it] from undue burden or expense . . . , including orders conditioning discovery on the requesting party's payment of the costs of discovery." Id. (internal quotation marks omitted). When, as here, a district court denies a protective order, the movant can appeal that decision; it cannot obtain the same relief from § 1920, which "impose[s] rigid controls on cost-shifting in federal courts." Crawford Fitting Co., 482 U.S. at 444.
Footnote 20. We are not confronted with a case in which the parties clearly agreed to the production of ESI on a particular database or in native file format. Thus, we have no occasion to consider the scope of allowable costs for the production of ESI under such circumstances. Compare In re Ricoh Co., Ltd. Patent Litig., 661 F.3d 1361, 1365-66 (Fed. Cir. 2011) (holding, when parties agreed to produce ESI in native file format on particular database, that "the costs of producing a document electronically can be recoverable," including basic costs of the database), with Race Tires, 674 F.3d at 171 n.11 (stating that In re Ricoh "is plainly distinguishable" on this basis).
Footnote 21. Notably, Gallo does not appeal the district court's denial of a protective order in this case.
For all these reasons, we agree with the district court's finding that, in this case, only the conversion of native files to TIFF and PDF formats, and the transfer of files onto CDs, constituted "making copies" under § 1920(4).***
We next determine whether Gallo's ESI processing charges are taxable as "[f]ees for exemplification." 28 U.S.C. § 1920(4). We think not.
Gallo argues that "[e]xtracting text and metadata" constitutes exemplification because they "illustrate by example [the] important features of the native files." Opening Br. 36-37 (internal quotation marks omitted). Gallo further argues that "loading . . . ESI into a review platform" constitutes exemplification because it "illustrates by example the important features of the ESI as if someone were seeing the ESI in its native computer environment." Id. at 37 (internal quotation marks omitted).
"Exemplification" has appeared in the statute since 1853, when the word meant "an illustration by example" [Noah Webster, A Dictionary of the English Language, Abridged from the American Dictionary 142 (1850). See also John Walker, A Critical Pronouncing Dictionary 132 (1858) (defining "exemplification" as "[a] copy, a transcript, an illustration by example; draught for a record")] or "[a]n official transcript of a document from public records, made in [a] form to be used as evidence, and authenticated as a true copy." [Benjamin Vaughan Abbott, Dictionary of Terms and Phrases Used in American or English Jurisprudence 463 (1879)]. Today, the word means "the act or process" of "show[ing] or illustrat[ing] by example," [Merriam-Webster Dictionary online, http://www.merriam-webster. com/dictionary/exemplification and http://www.merriam-webster. com/dictionary/exemplify (last visited April 5, 2013)] or "[a]n official transcript of a public record, authenticated as a true copy for use as evidence." [Black's Law Dictionary (9th ed. 2009)].
Other circuits are split over the meaning of "exemplification" as used in § 1920(4). For instance, the Federal Circuit, applying Sixth Circuit law, has found that "exemplification" is constrained to its legal meaning — "an official transcript of a public record, authenticated as a true copy to use as evidence" — because Congress did not adopt "the broad phrase 'demonstrative evidence.'" Kohus v. Cosco, Inc., 282 F.3d 1355, 1358-59 (Fed. Cir. 2002). The Seventh Circuit has taken a more expansive view, interpreting "exemplification" to mean "the act of illustration by example," a definition "broad enough to include a variety of exhibits and demonstrative aids." Cefalu v. Vill. of Elk Grove, 211 F.3d 416, 427 (7th Cir. 2000).
We need not determine in this case which view is most harmonious with the statute. Gallo's charges include neither authentication of public records nor exhibits or demonstrative aids. Accordingly, the district court correctly concluded that "the . . . costs in this case [do] not qualify as fees for exemplification." Country Vintner of N.C., LLC, 2012 U.S. Dist. LEXIS 108905, 2012 WL 3202677, at *2 n.4.
In sum, for the reasons set forth, we agree with the district court's finding that only the conversion of native files to TIFF and PDF formats, and the transfer of files onto CDs, constituted "making copies" under § 1920(4), and that none of Gallo's expenses constituted "[f]ees for exemplification."
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