Arguella, Christine M., United States District Judge
Trial court upheld clerk's grant of $57,873.61 to defendants on proposed Bill of Costs under 28 U.S.C. § 1920(4) allowing recovery for costs of defendant's consultant where plaintiffs were aware that retrieval of the requested ESI would require a third party consultant.
Plaintiffs, an addiction treatment center and its managing director, brought a § 1983 action against Colorado Department of Human Services and various officials in their individual and official capacities alleging violations of federal due process rights and asserting state law tort claims. Defendant moved to dismiss for lack of subject matter jurisdiction on the basis of qualified immunity, and the trial court granted the motion. The Tenth Circuit affirmed the dismissal.
Defendants then sought costs under 28 U.S.C. § 1920(4). Of the requested $58,037.01, the clerk awarded $57,873.61. Plaintiffs challenged the award of $55,649.98 of that amount which were costs paid to defendant's consultant to "retrieve and convert ESI into a retrievable format to produce information requested by plaintiffs".
The court analyzed the recovery of costs under 28 U.S.C. § 1920(4) and found that the costs incurred were recoverable under that section and "reasonably necessary" for the litigation as plaintiff used the information obtained by the consultant to allege additional theories of liability in an amended complaint. The court also noted that defendants had communicated with plaintiffs on several occasions about the difficulty in retrieving the requested information from the CATS system and plaintiffs chose not to modify their requests in any way. As a result, the court found that
Plaintiffs own litigation choices and aggressive course of discovery necessarily resulted in "heightened" defense costs. [citation omitted] Plaintiffs have not demonstrated that these costs are improper. Accordingly, Defendants are entitled to recover their costs in full measure as determined by the Clerk, which has identified it as $57,873.61.
v.
Daria Leslea, Individually and in Her Official Capacity as Controlled Substance Administrator, Division of Behavioral Health, f/k/a Alcohol and Drug Abuse Division, Colorado Department of Human Services, Janet Wood, Individually and in Her Official Capacity as Director, Division of Behavioral Health f/k/a Alcohol and Drug Abuse Division, Colorado Department of Human Services, Mary McCann, Individually and in Her Official Capacity as Clinical Director, Division of Behavioral Health f/k/a Alcohol and Drug Abuse Division, Colorado Department of Human Services, Karen Beye, Individually and in Her Official Capacity as Executive Director, Colorado Department of Human Services, Joscelyn Gay, Individually and in Her Official Capacity as Deputy Executive Director, Office of Behavioral Health, Colorado Department of Human Services, Karen Mooney, Individually and in Her Official Capacity as Treatment Field Manager, Division of Behavioral Health f/k/a Alcohol and Drug Abuse Division, Colorado Department of Human Services, and the Colorado Department of Human Services, Department of Behavioral Health, Defendants
Counsel
Richard Carl Kaufman, Ryley Carlock & Applewhite, P.A., Denver, CO, Jeffery Ferral Speer, Doucet & Speer, APLC, Lafayette, LA, for Plaintiffs.Amy Christine Colony, Colorado Attorney General's Office, Gillian Dale, Thomas J. Lyons, Hall & Evans, LLC, Denver, CO, for Defendants.