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In re Text Messaging Antitrust Litigation

United States District Court, N.D. Illinois, Eastern Division

September 2, 2014



MATTHEW F. KENNELLY, District Judge.

The plaintiffs in this case sued AT&T, Sprint, T-Mobile, and Verizon Wireless along with their industry association on behalf of all those who purchased text messages on a pay-per-use basis in the United States. Plaintiffs alleged that defendants conspired to fix prices for these messages in violation of the Sherman Act, 15 U.S.C. § 1. The Court granted summary judgment to defendants in May 2014. See In re Text Messaging Antitrust Litig., No. 08 C 7082, 2014 WL 2106727 (N.D. Ill. May 19, 2014). Each defendant has submitted a bill of costs seeking recovery of various expenses they incurred in this litigation, including a significant amount of e-discovery costs. For the following reasons, the Court approves each defendant's bill of costs in part.


A. Plaintiffs' request for a stay

Plaintiffs initially ask the Court to stay any action on defendants' bills of costs pending plaintiffs' appeal of the Court's decision granting summary judgment against them. They say that "rather than determine costs now, the Court's resources will be best conserved by awaiting the final adjudication of the case following appeal." Pls.' Resp. at 3. Plaintiffs' argument, in other words, is that the Court should not spend time on defendants' bills of costs now because plaintiffs may win on appeal, and the Court's work on the present motions would be for naught. This, however, is the case in any situation in which a party moves for costs after obtaining a judgment that the opposing party appeals.

This is not a good reason to postpone consideration of defendants' motions in this particular case. Defendants contend that prompt action on defendants' bills of costs actually promotes judicial economy, because if plaintiffs appeal the Court's decision, "any subsequent appeal from the order on costs can be consolidated with the appeal on the merits and heard at the same time." Defs.' Reply at 2. This makes more sense. If the Court waits until after plaintiffs' appeal to consider defendants' bills of costs, the sole effect would be to prolong this litigation, which began in 2008, even further. The Court declines to do so. The Court will, however, stay payment of the award of costs until the conclusion of plaintiffs' appeal.

B. Defendants' requested costs

Defendants have moved for over $700, 000 in costs. Federal Rule of Civil Procedure 54(d) states that "costs-other than attorney's fees-should be allowed to the prevailing party" unless "a federal statute, these rules, or a court order provides otherwise." In that regard, Congress has established that a court or clerk of court "may tax as costs" several different categories of expenses, including "[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case." 28 U.S.C. § 1920(4). The categories also include "[f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case." Id. § 1920(2). "There is a presumption that the prevailing party will recover costs, and the losing party bears the burden of an affirmative showing that taxed costs are not appropriate." Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 864 (7th Cir. 2005). The Supreme Court, however, recently stated that the "scope of taxable costs" is "narrow, " and that such "costs are limited to relatively minor, incidental expenses as is evident from § 1920." Taniguchi v. Kan.Pac. Saipan, Ltd., 132 S.Ct. 1997, 2006 (2012).

Plaintiffs do not dispute that defendants are prevailing parties for purposes of Rule 54(d). They do, however, take issue with many of defendants' specific requests. They argue that defendants have not provided sufficient detail about the copying costs they request; several categories of defendants' e-discovery expenses do not qualify as the cost of "making copies" under section 1920(4); and certain of their costs for transcript-related fees are not permitted under section 1920(2).

1. Copying costs

Plaintiffs first contend that defendants have not sufficiently supported "all of the information required" to support their requests for copying fees. Pls.' Resp. at 6. They argue that each defendant has failed in some way to provide detail about many of the copies for which they now seek costs. These lapses, plaintiffs say, include the failure to describe what was copied, the costs per page, and the number of copies. Defendants respond that they each provide an affidavit affirming that their copying costs were "limited to the costs incurred for the documents actually produced to Plaintiffs." Defs.' Reply at 5. They say: "what was copied' was each document produced to Plaintiffs (and nothing else)" and that no per-page rate is shown "because ESI services are not priced on that basis." Id.

Defendants also cite two Seventh Circuit cases that are pertinent here. In one, the court stated that a prevailing party seeking reimbursement for copying expenses "was not required to submit a bill of costs containing a description so detailed as to make it impossible economically to recover photocopying costs." Northbrook Excess & Surplus Ins. Co. v. Procter & Gamble Co., 924 F.2d 633, 643 (7th Cir. 1991). The court went on to state that the party instead "was required to provide the best breakdown obtainable from retained records." Id. In another case, this one more recent, the plaintiffs argued that the defendants "did not adequately prove what costs they had incurred, " but the Seventh Circuit disagreed. Nat'l Org. for Women, Inc. v. Scheidler, 750 F.3d 696, 698-99 (7th Cir. 2014). The court cited defendants' affidavit attesting that the claimed costs were necessarily incurred and stated that the defendants had no obligation to justify their costs on a document-by-document basis, saying "[t]hat would be preposterous" considering the low cost of copies and the high cost of attorney time. Id. The court continued: "No sensible legal system requires parties to waste $60 of lawyers' time to explain spending $6 on making a copy of something." Id.

Considering these authorities, as well as the affidavits and invoices defendants have submitted, plaintiffs have not persuasively argued that defendants have failed to adequately substantiate their requested copying costs. It would undoubtedly be onerous for any prevailing party in a litigation as long-running and far-reaching as this one to identify precisely each document it had copied along the way, as well as how many there were and how much each copy cost. The documentation defendants have submitted is sufficient, and the Court declines to reduce the amount defendants have requested for making copies on this basis.

2. E-discovery costs

Defendants have requested recovery of a variety of costs that fall under the broad category of e-discovery, or electronically stored information (ESI). The Seventh Circuit has not yet provided detailed guidance on the recoverability of e-discovery expenses on a bill of costs under 28 U.S.C. § 1920. In 2009, the court "brief[ly]" touched on the matter in a case where the (non-prevailing) plaintiff argued that costs "for converting computer data into a readable format in response to plaintiffs' discovery requests" were not proper under the statute. Hecker v. Deere & Co., 556 F.3d 575, 591 (7th Cir. 2009). In response, the Seventh Circuit stated flatly that "such costs are recoverable under 28 U.S.C. § 1920." Id. Several courts in this district have acknowledged that the Seventh Circuit has not otherwise ruled on the extent to which e-discovery costs can be taxed against a non-prevailing party under section 1920. See, e.g., Life Plans, Inc. v. Sec. Life of Denver Ins. Co., No. 11 C 8449, 2014 WL ...

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