Javeler Marine Services LLC v. Cross

189 F. Supp. 3d 659, 2016 WL 4445933
Procedural entryThis page is a short order in Javeler Marine Services LLC v. Cross. Read the opinion of the Court — 175 F. Supp. 3d 756
District Court, S.D. Texas·Decided August 4, 2016·No. CIVIL ACTION NO. 4:14-0670·Published

Opinion

MEMORANDUM AND ORDER

NANCY F. ATLAS, United States District Judge

This case is before the Court on the revised Bills of Costs filed by Defendants Matthews Marine, Inc. of Mississippi (“Matthews Marine”) [Doc. # 76] and Vil-lere Cross (“Cross”) [Doc. #77]. Plaintiff Javeler Marine Services LLC (“Plaintiff’ or “Javeler”) objects to the costs in its Responses to the respective Bills of Costs [Docs. #78, #79]. After carefully considering the parties’ briefing, all matters of record, and the applicable legal authorities, the Court grants Plaintiff Javeler’s objections in part and awards Defendants Cross and Matthews Marine certain of the requested costs.

I. BACKGROUND

Defendants seek reimbursement for fees they incurred for electronic discovery conducted in this case. Plaintiff Javeler commenced this case after discovering Certain emails in which Defendant Cross, a former Javeler employee, had shared Javeler’s proprietary information with Matthews Marine, who hired Cross when he left Ja-veler.1 Javeler asserted various tort and contract claims in this Court against Defendants and sought preliminary injunctive relief and damages.2 At an expedited conference on April 1, 2014, the parties and the Court agreed that the most urgent concern-in the case was preservation of the parties’ documents and associated electronically stored information (“ESI”).3 The parties entered into an Agreed Protocol for Review of Forensic Images (the “Protocol”) and retained a neutral third-party digital forensics firm, Avansic, Inc. (“Avan-sic”) to perform the forensic copying of questioned devices Defendants possessed, to run agreed keyword searches, and to provide copies of non-privileged ESI to the parties.4

Avansic accordingly created accurate forensic images of all the ESI on eight de[661]*661vices produced by Defendants.5 Avansic searched the data using terms provided by the parties, retrieve potentially responsive documents, and examined the data for evidence of “attempted spoliation or deletion.” 6 Avansic also performed file conversion 7 and exported the converted files for use by the parties.8 Following an initial review by Defendants for privileged documents, Avansic provided the non-privileged responsive documents to Plaintiff Ja-veler.

The total amount paid to Avansic was $23,747.93.9 This amount comprises the following charges:

• Creation of forensic images: $4,800;
• Keyword searches in collected data: $9,150;2
• File conversion and exportation: $9,193.75;
• Postage and shipping: $604.18.10

In the Protocol, the parties agreed to share equally the costs of Avansic’s electronic discovery work, but permitted any party to seek “equitable adjustment of the cost allocations following the completion of the forensic examination.”11 In the original Bills of Costs filed in this case, Defendants each sought taxation of the entirety of their respective one-third shares of Avan-sic’s fees, approximately $8,000, and Javeler objected.12 The Court sustained Javeler’s objection to the taxation of the costs of the keyword searches and postage, but concluded that the costs of imaging the ESI on Defendants’ devices and conversion and exportation of the files might be taxable if adequately explained and shown to be necessary.13 The record submitted in support of the original Bills of Costs, however, was insufficient to make a final determination regarding these categories.14 The Court therefore invited Defendants to submit revised Bills of Costs

II. ANALYSIS

The relevant legal principles are explained in detail in this Court’s Memorandum and Order dated March 30, 2016. The original Bills of Costs discussed therein lacked sufficient information for the Court completely to resolve the issues presented. The Court now concludes that the revised Bills of Costs adequately respond to the Court’s requests for additional information regarding forensic imaging, but are insufficient regarding other electronic discovery tasks.15 The Court also concludes that it is [662]*662equitable to adjust the allocation of costs under the Protocol to reflect the amounts to which Defendants are legally entitled as taxable costs.

A. Taxable Costs

Costs taxable under 28 U.S.C. § 1920 “should be allowed to the prevailing party.”16 The Fifth Circuit “recognize[s] a strong presumption that the court will award costs to the prevailing party.”17 Section 1920 lists six categories of costs that may be awarded. Defendants’ requests in the revised Bills of Costs are made pursuant to the fourth category, “[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case.”18

Costs of Imaging. — The Court previously held that the costs of imaging a hard drive are taxable under § 1920(4) because the process constitutes “making a copy” of the ESI contained on a digital device. Defendants must also show that the forensic images of the digital devices were “necessarily obtained for use in the case.” The Court previously observed that “[evaluation of ESI in its original state ... was necessary for discovery on Javeler’s claims and Defendants’ defenses,” The Court noted that “[tjhere also was plainly a business need for Defendants continued use and custody of their ... devices.” These observations “established a prima facie showing” of necessity.19 Plaintiff Ja-veler has not offered any evidence or meaningful argument that the forensic imaging process was unnecessary in this case. The Court therefore concludes that the $4,800.00 charged by Avansic for this process constitutes a “cost[] of making copies of .,. materials” that were “necessarily obtained for use in the case.”20 Each Defendant paid one-third, or $1,600.00, of this cost. Therefore, Defendants are respectively entitled to taxation of $1,600.00 for their pro rata payment of the costs of imaging the devices.

Costs of Converting and Exporting Files. — Under Fifth Circuit precedent, file conversion constitutes “making copies.”21

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Javeler Marine Services LLC v. Cross, 189 F. Supp. 3d 659, 2016 WL 4445933 (S.D. Tex. 2016).

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