We have Geek Judges. I love those Jurists. We also have Judges who love sports. I have a gut feeling it would be fun to go see a baseball game with Magistrate Judge Young B. Kim.
Bagwe v. Sedgwick Claims Mgmt. Servs., is a case where the prevailing party sought eDiscovery costs against an individual plaintiff. The Court took the mound for its analysis of the Defendants’ arguments with the following wind-up:
Defendants take several different swings to recover their costs related to ediscovery. Defendants first swing for the fence and seek $57,858.94 for the entirety of their ediscovery costs. They miss.
Bagwe v. Sedgwick Claims Mgmt. Servs., 2015 U.S. Dist. LEXIS 8809, at *15 (N.D. Ill. Jan. 27, 2015).
Get out the peanuts and crackerjacks, because Judge Kim was just getting warmed up.
As with many eDiscovery cost cases, the Court stated that the Defendants were “vague” about how the sum of $57,858.94 was determined. The Court cited that the costs pertained to obtaining and culling 422.05 Gigabytes of data down to 25 Gigabytes. Bagwe, at *15-16.
The Defendants argued they used “eDiscovery techniques” and were able to identify “even better” data than the prevailing Defendants in the In re Aspartame Antitrust Litigation, 817 F. Supp. 2d 608, 614-15 (E.D. Pa. 2011). Bagwe, at *16.
Defendants unsuccessfully argued that cases such as “Race Tires, Rawal, and Johnson were all wrongly decided” and that the facts of the current case justified cost recovery. Id. The Court answered this argument as follows:
Defendants’ assertion that Race Tires, Rawal, and Johnson were wrongly decided may be brushed aside because they do not offer any reasons why these cases were wrongly decided or why this court should not follow them. They merely urge the court to award all of their e-discovery costs because “[t]he equities demand [Bagwe] be held fully responsible.” But Rule 54 is not a discovery sanction tool.
Bagwe, at *16-17.
The Court continued the baseball metaphor with, “Defendants next swing for a double and argue that if the entire amount cannot be recovered, they are entitled to at least $7,953.90, which represents the cost of “gather[ing] emails with metadata intact . . . by creating forensic images and then extracting the .pst files into .msg files,” which they say amounts to converting the files into a “readable format.” Bagwe, at *17.
The Court stated this argument was again a miss, because the Defendants did not explain how “the act of gathering e-mails that include metadata is different from other types of non-taxable ‘gathering.’” Id. As stated in prior decisions, “gathering, preserving, processing, searching, culling, and extracting of ESI” are not recoverable. Id.
The Court rejected the Plaintiff’s argument that the only recoverable costs were a $67 thumb drive. Bagwe, at *17-18.
The Defendants did get a hit with their final eDiscovery cost argument on “copying.” As the Court explained in its analysis of exemplification in Section 1920:
Costs for “exemplification and the costs of making copies” through photocopying and the conversion of ESI into a readable format are two sides of the same coin: namely, the pre-and-post digital era approach to “copying,” or creating readable documents that may be transmitted to the party requesting the information. The court notes that Section 1920(4) does not employ the phrase “making photocopies,” which is commonly understood to mean making paper copies, but employs the phrase “making copies of any materials,” which is a much broader phrase with more diverse meaning. Accordingly, Defendants are entitled to recover $7,266.40 in ediscovery costs.
Bagwe, *18-19, referencing Massuda v Panda Express, Inc, 2014 U.S. Dist. LEXIS 4956, at *6.
$7,266.40 is a good base hit in the world of eDiscovery cost recovery.
Bow Tie Thoughts
First things first: I cannot wait for baseball season.
From a philosophic point of view, I agree with the Defendants that there should be greater recovery for eDiscovery costs. However, no one can cite “Josh thinks so,” in a motion and a Court will simply agree with me.
Proving eDiscovery costs were necessary for litigation and required for productions take invoices that explain what steps were taken and why. Even then, expert affidavits would still need to be prepared to explain to the Court why those eDiscovery technologies were used. Even if a party provided a Judge with the educational background on why those technologies were applied to the data, and how processing IS making copies, there is no guarantee such a report would knock the argument out of the ballpark.
Do I think there should be greater cost recover in eDiscovery costs? You bet. I also think Pablo Sandoval should have stayed with the Giants, but that did not happen. I often have the same melancholy feelings about parties not being able to recover hosting or processing costs as the Panda leaving San Francisco.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.