Like Copying, A Party Can Recoup the Cost of Scanning

Like Copying, A Party Can Recoup the Cost of Scanning

This incident arises under the premise that courts have allowed prevailing parties to recover the costs of converting paper documents into electronic files when the parties agreed that responses to discovery requests would be produced in an electronic format.

The defendants sent the plaintiffs a bill for just over $65,000 for the costs of scanning nearly 450,000 documents they produced during discovery.  While the judge did not exactly award that amount to defendants, he came extraordinarily close.

The plaintiffs tried to fight the costs by arguing first that they were made in responding to discovery and thus unrecoverable, and second that they were produced for convenience and therefore unnecessary.  The court was unpersuaded by either argument.

Surveying the case law in the Fifth Circuit and other jurisdictions, the judge determined that the cost of scanning paper documents into an electronic format was equivalent to making copies.  Notably, only scanning and file format conversion was considered equivalent, and not other activities including, for example: collecting and preserving ESI, processing and indexing ESI, and keyword searching ESI for responsive and privileged documents.  That was precisely the reason the judge required supplemental briefing from the defendants and did not outright award the costs they sought.  The defendants’ invoices may have included other unrecoverable costs, and in order to recover in the subsequent briefings they would need to show which specific costs were attributable to scanning or making copies.  In a subsequent order, the judge did find the plaintiffs were responsible for over $50,000 of the defendants’ document production costs.

In short, this case stands for the very simple proposition that “costs” includes “scanning” just as it also historically includes “photocopying.”

Samuel is in the Seton Hall University School of Law Class of 2015 pursuing the Intellectual Property concentration. He received his master’s from the Rutgers Graduate School of Biomedical Sciences and became a registered patent agent prior to entering law school.

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