Saturday, December 14, 2013

CAFC on 28 USC 1920

From CBT Flint vs. Return Path :

CBT Flint Partners, LLC, sued Return Path, Inc., and Cisco IronPort Systems, LLC, in the Northern District of Georgia for patent infringement. After deciding the merits of the case against CBT, the district court ruled that CBT should have to pay the defendants their “costs,” which the clerk taxed at $49,824.60 for Return Path and $268,311.12 for Cisco. In the present appeal by CBT, we hold that the district court erred in its interpretation of the statutory provision governing the taxation of costs here, 28 U.S.C. § 1920(4). We reverse in part, vacate in part, and remand.

Metadata is mentioned in footnote 2:

The term “metadata” may encompass different types of data associated with a particular document. In a glossary that is relied on extensively in Race Tires Ameri- ca, Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158 (3d Cir. 2012), the Sedona Conference defines metadata generally as follows:
Data typically stored electronically that describes characteristics of ESI [electronically stored infor- mation], found in different places in different forms. Can be supplied by applications, users or the file system. Metadata can describe how, when, and by whom ESI was collected, created, accessed, modified, and how it is formatted. Can be altered intentionally or inadvertently. Certain metadata can be extracted when native files are processed for litigation. Some metadata, such as file dates and sizes, can easily be seen by users; other metadata can be hidden or embedded and una- vailable to computer users who are not technically adept. Metadata is generally not reproduced in full form when a document is printed to paper or electronic image.

The Sedona Conference, The Sedona Conference Glossary: E-Discovery & Digital Information Management 34 (Sher- ry B. Harris et al. eds., 3rd ed. 2010). The Sedona Con- ference provides additional definitions for specific types of metadata, including Application Metadata, Document Metadata, Email Metadata, Embedded Metadata, File System Metadata, User-Added Metadata, and Vendor- Added Metadata.

Digital copies are mentioned in footnote 4

On the nature of a modern digital copier, see, e.g., Trintec Indus., Inc. v. Top-U.S.A. Corp., 295 F.3d 1292, 1296 (Fed. Cir. 2002).

Of 1920(4)

The general approach outlined above, and most of the applications we have set out, are consistent with the analysis of other circuits that have interpreted section 1920(4) to allow for only limited recovery of the costs of electronic-document production. See, e.g., Country Vint- ner, 718 F.3d at 260 (allowing costs of converting electron- ic files to non-editable formats and burning the files onto discs); Race Tires, 674 F.3d at 171 (allowing costs of scanning hard-copy documents, converting file format to production format, and transferring of VHS tapes to DVD); Hecker v. Deere & Co., 556 F.3d 575, 591 (7th Cir. 2009) (allowing costs of converting computer data into a readable format); BDT Prods., Inc. v. Lexmark Int’l, Inc., 405 F.3d 415 (6th Cir. 2005) (allowing costs of electronic scanning and imaging).

Our application of section 1920(4) apparently differs from two circuits in one way—regarding the stage-one costs of imaging source media and extracting documents in a way that preserves metadata. In Race Tires, the Third Circuit put hard-drive imaging and metadata extraction in the same category as unrecoverable prepara- tory activities such as searching, reviewing for respon- siveness, and screening for privilege. Race Tires, 674 F.3d at 169-70; see also Country Vintner, 718 F.3d at 260 (adopting Fourth Circuit’s reasoning in Race Tires). As between “making copies” and “attorney and paralegal review,” Race Tires, 674 F.3d at 170, we think that the former better describes imaging a source drive and ex- tracting requested data where the extracted data are included in the discovery request. It seems to us that there is no good reason, as a default matter, to distinguish copying one part of an electronic document (i.e., the part that is visible when printed) from copying other parts (i.e., parts not immediately visible) when both parts are re- quested. More precisely, we think that this is the better application of the principle that governs in the Eleventh Circuit, suitably adjusted for the 2008 amendment of section 1920(4). We emphasize, however, that a default rule can be altered by agreement of the parties.


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