- Creating the litigation database;
- Processing the electronic data that went into the database;
- Hosting and storing electronic data through trial;
- Reviewing the electronic data via keyword and privilege searches;
- Using Optical Character Recognition (“OCR”) software that enabled the electronic documents to be searchable;
- Extracting metadata;
- Imaging hard drives;
- De-duplicating (removal of duplicate copies) data;
- Creating “load” files that enabled the requesting party to access the documents that were electronically produced;
- Scanning and copying;
- Creating CDs and DVDs containing various electronic documents;
- Using electronic data recovery systems to access and sometimes to restore password-protected files;
- Using tape restoration to convert old archived data to current, usable formats; and
- Technical support for all of the services found taxable.
Slip op. at 5-14.
The prevailing defendants didn’t get everything, however. The following items were disallowed:
- Using advanced “analytics” technology (solely for convenience of the producing party). Slip op. at 6-7.
- Certain inadequately separated out items. Id. at 7, 12, 13. Moral of story: keep precise expense records.
- Including Bates numbers and confidentiality labels (not a category of taxable costs). Id. at 10-11.
- Using color scanning for documents that were not in color (unnecessary). Id. at 12.
- Converting TIFF documents to PDF format (solely for convenience of the producing party). Id. at 13.
As we said before, we support taxation of e-discovery costs because, it creates at least some restraining counterbalance upon excessive and burdensome e-discovery demands – particularly in cases, such as prescription medical product liability litigation, where these costs fall disproportionately on the defendants. To the extent, however, that plaintiffs are subject to e-discovery, and thereby incur similar costs, we would be remiss if we did not point out that our own clients could conceivably be on the receiving end of such a motion. Still, the key word is “disproportionate,” and until plaintiffs have databases and email systems comparable to our clients (which we expect will be “never”), we have to consider taxation of e-discovery costs to prevailing parties to be overwhelmingly a good thing.