The District Court of Colorado determined cost shifting was appropriate because of the requesting party litigation choices and aggressive course of discovery resulted in heightened defense costs.
In this case, the Clerk of the Court awarded $57,873.61 of taxable costs against the Plaintiff. Defendant, who prevailed on summary judgment, incurred into those costs as a result of contracting with a private consulting company to retrieve and convert ESI as requested by Plaintiffs.
Plaintiffs contended that the Court should reduce the costs entered by the District Court Clerk because they include the services of a third party vendor, in retrieving, restoring and converting data, which does not constitute “copying” under 28 U.S.C. § 1920(4).
However, the Court agreed with the Clerk and upheld the taxable costs in favor of Defendants.
Under 28 U.S.C. § 1920(4) the Court “may award copy and exemplification fees for copies of any materials necessarily obtained for use in the case”. The ‘necessarily obtained for use in the case’ standard requires transcription and copy costs to be reasonably necessary to the litigation of the case. The risk of being charged with the costs of complying with one’s own discovery requests encourages parties “to make narrow, focused discovery requests, rather than going on broad, potentially expensive, fishing expeditions”.
The Court notes that the plaintiffs’s requested document collection was difficult to retrieve, and the parties had to enter into three consecutive tolling agreements due to the time required for the collection. Moreover, the requesting party did not initiate discussions aimed at limiting the scope of their request nor did it take any measures to reduce the production cost.
Comprehensive Addiction Treatment Center, Inc. v. Leslea, No. 11-cv-03417-CMA-MJW, 2015 U.S. Dist. LEXIS 17878 (D. Colo. Feb. 13, 2015) is available (with subscription) at http://www.lexisnexis.com/
Feb 13, 2015
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