

Costs in eDiscovery are a never ending ordeal for parties.

There is little question that the Taxation Guidelines should be updated to meet the realities of computer forensic investigation, preservation and processing.

Consider the following situation, where the Court addressed “image processing”:

Mitre has requested a total of $5,453.96 in image processing costs from Modus. There is scant case law on the issue of image processing, but the Taxation Guidelines limit taxation of costs of “maps, charts and photographs” to those that are admitted into evidence. Mitre offers no explanation of what these image processing services entailed (for example, what does it mean to “blow back TIFF images,” why does it cost $686.00, and why did it need to be performed twice?), but Mitre makes no claim that the resulting images were ever admitted into evidence. The Court will subtract all $5,453.96 of Mitre’s image processing costs from Mitre’s requested amount. If Mitre wishes, it may file an additional motion explaining the image processing fees and requesting that they be taxed as costs.

Taylor v. Mitre Corp., 2013 U.S. Dist. LEXIS 19550, at *4 (E.D. Va. Feb. 13, 2013) (emphasis added).

What can we take from the above? First, it is important to remember the Court is coming in cold to a dispute between the parties. Moreover, the Court has not lived with the day-to-day technical issues in a case and why project management decisions were made. As such, a party must explain to the Court why native files were converted to TIFF or “blow back TIFF’s” were required in the litigation. This likely will require an expert affidavit, so the Court will be able to make an informed decision on costs.

It is no secret that I am not a fan of converting searchable ESI to TIFFs without a good reason, such as redactions of confidential information. That might have been the situation in this case. Regardless, a good practice pointer for attorneys is to explain why technical decisions were made in the processing of electronically stored information.