Javeler Marine Services LLC v. Cross
Javeler Marine Services LLC v. Cross
Opinion of the Court
MEMORANDUM AND ORDER
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.
Avansic accordingly created accurate forensic images of all the ESI on eight de
The total amount paid to Avansic was $23,747.93.
• 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.”
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.
A. Taxable Costs
Costs taxable under 28 U.S.C. § 1920 “should be allowed to the prevailing party.”
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.
Costs of Converting and Exporting Files. — Under Fifth Circuit precedent, file conversion constitutes “making copies.”
The Fifth Circuit has not addressed the taxability of the costs of exporting flies. Because Defendants have not provided evidence of the necessity of these costs, the
B. Equitable Adjustment
The Protocol permits any party to petition the Court for “an equitable adjustment of the cost allocations following the completion of the forensic examination.”
Equity does not support reallocation of the entirety of Avansic’s fees to Plaintiff Javeler. It is undisputed that Defendant Cross transmitted certain proprietary Ja-veler documents to Defendant Matthews Marine.
III. CONCLUSION
For the foregoing reasons, Defendants Cross and Matthews Marine are each entitled to an award of $1,600.00, their respective one-third shares of the costs of the forensic imaging process in this case. It is therefore
ORDERED that the objections in Plaintiff Javeler Marine Services LLC’s Opposition to Defendant Matthews Marine, Inc.’s Supplemental Memorandum in Support of Its Bill of Costs [Doc. #78] and Opposition to Defendant Villere Cross’ Memorandum in Support of Revised Bill of Costs [Doc. #79] are GRANTED in part as stated in this Memorandum and Order and DENIED in all other respects. It is further
ORDERED that Defendant Villere Cross is AWARDED $1,600.00 in taxable costs pursuant to his revised Bill of Costs [Doc. #77] and DENIED all other requested costs. It is further
ORDERED that Defendant Matthews Marine, Inc. of Mississippi is AWARDED $1,600.00 in taxable costs pursuant to its revised Bill of Costs [Doc. # 76] and DENIED all other requested costs.
. See Memorandum and Order [Doc. # 68], at 3-4.
. See Original Complaint and Application for Injunctive Relief [Doc. # 1].
. See Hearing Minutes and Order [Doc. # 9].
.Exh. A to Cross Original Bill of Costs, Agreed Protocol for Review of Forensic Images (the "Protocol") [Doc. #71-2], at 2, ¶ 4
. A forensic image is "[a]n exact copy of an entire physical storage media ..., including all active and residual data and unallocated or slack space on the media.” See Memorandum and Order [Doc. #75], at 10 (quoting The Sedona Guidelines: Best Practice Guidelines & Commentary for Managing Information & Records in the Electronic Age, at 28 (Lori Ann Wagner et al. eds., 2d ed. 2007)).
. Protocol [Doc. # 71-2], at 2,114.
. The record is unclear regarding the particular file conversion process employed by Avan-sic in this case.
. See Affidavit of Gavin W. Manes (“Manes Affidavit”) [Doc. # 76-2], at ¶¶ 7-8.
. Id., at-1, ¶ 3.
. Manes Affidavit [Doc. # 76-2], at 2, ¶ 5.
. Protocol [Doc. # 71-2], at 3, ¶ 8.
. See Matthews Marine Original Bill of Costs [Doc, # 70]; Cross Original Bill of Costs [Doc. #71]; Javeler Responses [Docs. #72, #73],
. Memorandum and Order dated March 30, 2016 [Doc. # 75], at 22-24, 27.
. See id., at 22, 25.
. Defendants also originally requested taxation of certain traditional photocopying expenses, for which requests they have not provided additional factual support as required by the Memorandum and Order of March 30, 2016 [Doc. #75], at 26-27. The request for taxation of traditional photocopying costs are therefore denied.
. Fed. R. Civ. P. 54.
. Salley v. E.I. DuPont de Nemours & Co., 966 F.2d 1011, 1017 (5th Cir. 1992) (citing Sheets v. Yamaha Motors Corp., U.S.A., 891 F.2d 533, 539 (5th Cir. 1990)); see also Jerry v. Fluor Corp., No. H-10-1505, 2012 WL 4664423, at *1 (S.D.Tex. Oct. 2, 2012) ("[T]he Fifth Circuit presumes courts will award costs to the prevailing party,”).
. 28 U.S.C. § 1920(4).
. Memorandum and Order [Doc. # 75], at 22.
. See 28 U.S.C. § 1920(4).
. United States ex rel. Long v. GSDMIdea City, L.L.C., 807 F.3d 125, 131-32 (5th Cir. 2015).
. See Memorandum and Order [Doc. # 75], at 24 (explaining that conversion costs "may be recoverable under § 1920(4), provided they are shown to have been necessary for use in the litigation”).
. See La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 335 (5th Cir. 1995) (noting that a district court must carefully scrutinize requests for taxation of costs by the prevailing party). This conclusion that Defendants failed to carry their burden is not a finding that file conversion is generally unnecessary.
. Protocol [Doc. # 71-2], at 3, ¶ 8.
. Matthews Marine Inc, Supplemental Memorandum in Support of Its Bill of Costs [Doc. # 76], at 5-7.
, Cross Memorandum in Support of Revised Bill of Costs [Doc. # 77-1], at 4.
, See Memorandum and Order [Doc, # 68], at 3-4.
Reference
- Full Case Name
- JAVELER MARINE SERVICES LLC v. Villere CROSS and Matthews Marine, Inc. of Mississippi
- Status
- Published