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Kuznyetsov v. Wst Penn Allegheny Health Sys., Scanning And Conversion Of Native Files Constitutes Making Of Copies

This Fair Labor Standards Act case brought by Plaintiffs Andrew Kuznyetsov, Charles Boal and Marthann Heilman was initially certified as a collective action and then subsequently decertified after the judge determined that the great majority of Plaintiffs who opted in were not similarly situated. The claims of the named Plaintiffs were dismissed with prejudice. The judge indicated that in this case the “(d)iscovery was contentious and the motions practice was excessive,” resulting in the appointment of a special master to rule on all discovery and related motions.

The Plaintiffs filed a motion requesting that the trial court vacate the Clerk of Courts’ Taxation of Costs assessment of $60,890.97 against them. The Plaintiffs argued that the taxation of costs should be vacated because: “1) defendants were not the prevailing party, and 2) the costs awarded were for e-discovery costs that were not necessary and were awarded at unreasonably high rates.”

The court found that there was no doubt that the Defendants were the prevailing party on the issue of decertification. Turning to a de novo review of the taxation of costs, the court noted that the Plaintiffs argued that the costs associated with Optical Character Recognition were unnecessary. However, the court pointed out that it was the Plaintiff that requested that the information be produced in OCR format. The court held that the “scanning and conversion of native files to agreed-upon format for production of ESI constitutes ‘making of copies of materials’ as pursuant to Sec. 1920(4).” Finding the costs associated with OCR conversion to be taxable, the court indicated that it did not find 5 cents per page for TIFF services or 24 cents per page for scanning paper documents to be unreasonably high.

The Plaintiff’s argument that the Defendants acted in bad faith and therefore it would be unfair for the named Plaintiffs to be responsible for all the taxable costs was rejected by the court. The court also rejected they plaintiff’s argument that they were of “modest means” and therefore should not pay all the taxable costs.
Finding no basis upon which to vacate the costs against the Plaintiffs, the court emphasized that attorneys must advise their clients regarding the many risks of litigation which include the chance that they may have to pay costs if the litigation is unsuccessful.

Kuznyetsov v. West Penn Allegheny Health Sys., 2014 WL 5393182 (W.D. Penn. Oct. 23, 2014).

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