Herron v. Fannie Mae
Herron v. Fannie Mae
Opinion of the Court
On March 8, 2016, the Court entered judgment in favor of Defendants in this case. See 3/8/2016 Opinion [Dkt. 163]; 3/8/2016 Order [Dkt. 164]. While Plaintiff's appeal of that judgment was pending, Defendant Federal National Mortgage Association (Fannie Mae) submitted a Bill of Costs to the Court. See Bill of Costs [Dkt. 166] (First Bill of Costs). In an April 19, 2016 Minute Order, the Court stated that "While the Court finds that the costs that Fannie Mae has requested are not 'excessive or unallowable' and that they are recoverable under Federal Rule 54(d)(1) of Civil Procedure and
On June 27, 2017, the United States Court of Appeals for the District of Columbia Circuit affirmed the Court's judgment, see Mandate [Dkt. 188]. Fannie Mae has accordingly refiled its Bill of Costs, see Notice and Refiling of Bill of Costs [Dkt. 185] (Refiled Bill of Costs), and Plaintiff Herron has renewed her earlier opposition. See Pl.'s Objections to Defs.' Bill of Costs [Dkt. 186] (Opp'n). In its April 19, 2016 Minute Order, the Court found that Fannie Mae's costs were recoverable, and the Court finds so here as well.
I. STANDARD OF REVIEW
Federal Rule of Civil Procedure 54(d)(1) gives the Court discretion to award fees to a prevailing party that fall under certain enumerated categories found in
II. ANALYSIS
The only difference between Fannie Mae's First Bill of Costs and Refiled Bill of Costs is that the Refiled Bill includes interest imputed from the day of judgment; the underlying costs have not changed. Similarly, Ms. Herron's renewed Opposition remains substantively similar to the Opposition she filed in response to *424Fannie Mae's First Bill of Costs.
A. Deposition Transcripts
Ms. Herron contests Fannie Mae's request for transcript costs associated with five deposition witnesses whose testimony related only to damages. Opp'n at 4. She argues that because damages were not relevant to summary judgment, Fannie Mae should have waited to depose those witnesses and sought leave to re-open discovery in the event the Court denied summary judgment.
However, a party need not use a deposition transcript in order to recover costs associated with its creation. The D.C. Circuit has suggested that costs are appropriate where a deposition transcript would be used "to prepare for the trial which would have ensued had the district judge not granted summary judgment." Sun Ship, Inc. v. Lehman ,
B. Witness Fees
Ms. Herron similarly objects to Fannie Mae's request for witness fees associated with three witnesses whose depositions were not used in the summary judgment briefing. Opp'n at 5. Again, the witnesses' testimony related only to damages. For the reasons articulated above, Fannie Mae acted reasonably in seeking discovery related to damages and is therefore entitled to fees associated with these three witnesses.
C. Copies
Finally, Ms. Herron asserts that Fannie Mae is not entitled to "copying" costs associated with creating electronic TIFF files. Ms. Herron asserts that the plain language of § 1920 and Local Rule 54.1(d) only allow for costs associated with the creation of physical copies. Opp'n at 5. In Ms. Herron's view, to do otherwise would "dispense with the 'ordinary meaning' of 'copies' in Section 1920(4) from its widely recognized 'making copies' i.e. , making photocopies, to the novel and extratextual costs relating to converting discovery materials documents to a TIFF format." Id. at 6.
While it does not appear that this Circuit has previously considered this question, the courts that have considered the issue have generally concluded that "copies" under § 1920(4) includes the creation of electronic copies such as TIFF
*425files. See, e.g., CBT Flint Partners, LLC v. Return Path, Inc. ,
However, the Court agrees with CBT Flint Partners, Country Vintner , and Balance Point , all of which considered the issue of electronic copies after Taniguchi was decided. Fundamentally, if a litigant wants to provide another party-or the Court-with a document while simultaneously retaining that document for itself, it must first make a copy. Section 1920(4) allows that party to seek costs for the creation of that copy. The fact that the copy ultimately takes an electronic form instead of a physical one does not change the fact that a "copy" of the original document was made. The reasoning in Taniguchi , which dealt with the two conceptually similar but distinct concepts of "interpreting" and "translating," is inapposite here, where the plain meaning of "copy" would apply to both an electronic copy and a physical copy. Ms. Herron herself demonstrates the difficulty in treating the two as different when she states that the rules should not be expanded "to cover the costs of making TIFF copies." Opp'n at 5. The most natural formulation of what the TIFF file is, as Ms. Herron states, is a "copy" of the original document. Ms. Herron's argument that "making copies" should be understood to mean "making photocopies" perhaps proves too much, since photocopying technology, as opposed to other forms of duplication, was not widely commercially available when Congress first passed § 1920(4) in 1948. See
Ms. Herron further argues that the amount requested by Fannie Mae per copy, $0.05, is unreasonable. In support, she points to Balance Point , which found that $0.02 was a reasonable cost per page for TIFF conversion.
CONCLUSION
In light of the above, the Court finds that the costs requested by Fannie Mae in its Refiled Bill of Costs are reasonable. Therefore, it is hereby
ORDERED that costs in this matter are taxed in the amount of $42,779.55, plus accrued interest in an amount no less than $376.56, for a total of $43,156.11.
In her renewed Opposition, Ms. Herron dropped some arguments from her initial Opposition that are no longer relevant; for example, Ms. Herron originally argued-and the Court agreed-that Fannie Mae's First Bill of Costs was untimely, which is no longer an issue here.
Ms. Herron does not contest Fannie Mae's calculation of interest in its Refiled Bill of Costs, and, thus conceded, the Court concludes that calculation is reasonable. As of July 7, 2017, the interest amount totaled $376.56.
Reference
- Full Case Name
- Caroline HERRON v. FANNIE MAE
- Cited By
- 1 case
- Status
- Published