Monday, March 30, 2020

A Familiar Law Firm Associate Task Is Not A Recoverable Copying Cost

The United States Court of Appeals for the District of Columbia Circuit has limited the taxable costs sought and obtained in the District Court by prevailing party Kellogg Brown & Root

The discovery response

To process Barko’s document requests, KBR used an ediscovery software called Introspect to “host, review, and export data for production.” Appellees’ Br. 4. The 2.4 million potentially responsive pages were loaded into Introspect, which required scanning hard copies of certain documents into electronic form and converting preexisting electronic files into the hosting platform’s format. Within the platform, documents were organized, keyword-searched, indexed, screened, and otherwise processed—tasks familiar to any law-firm associate who has survived “doc review.” As a last step, KBR converted the 171,000 responsive documents into TIFF or PDF files, transferred them onto USB drives, and produced the materials to Barko’s counsel.

The costs award sought

KBR’s e-discovery costs, all of which the district court awarded, stem from five different stages: (1) initial conversion, i.e., converting files from their native formats into a format compatible with an e-discovery hosting platform; (2) subscribing to a hosting platform, in this case Introspect,  that facilitates the various steps of e-discovery; (3) processing documents, e.g., organizing, keyword-searching, and Bates stamping; (4) conversion for production, i.e., converting documents into shareable formats for production to opposing counsel, and, where necessary, transferring those files onto portable media, e.g., USB drives; and (5) production processing, i.e., drafting production cover letters and shipping discovery materials to opposing counsel.

Hewing close to section 1920(4)’s text and guided by Taniguchi, we conclude that the only e-discovery costs that KBR may recover are those incurred in step (4)—converting electronic files to the production formats (in this case, PDF and TIFF) and transferring those production files to portable media (here, USB drives). That means KBR can recover $362.41 in “External E-Discovery” conversion and production costs— expenses that Barko concedes are taxable. Appellant’s Br. 3 n.3. These tasks resemble the final stage of “doc review” in the pre-digital age: photocopying the stack of responsive and privilege-screened documents to hand over to opposing counsel. Such costs were taxable then, and the e-discovery analogs of such costs are taxable now.


Again, these e-discovery tasks are comparable to the steps that law-firm associates took in the pre-digital era in the course of “doc review”—identifying stacks of potentially relevant materials, culling those materials for documents containing specific keywords, screening those culled documents for potential privilege issues, Bates-stamping each screened document, and mailing discovery materials to opposing counsel. Because “[n]one of the steps that preceded [or followed] the actual act of making copies in the pre-digital era would have been considered taxable,” id., such tasks are untaxable now, whether performed by law-firm associate or algorithm.

Circuit Judge Tatel authored the opinion. (Mike Frisch)

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