I. Background

This is a consolidated antitrust class action in which Plaintiffs sued Defendants regarding simultaneous imposition of a $15 first-bag fee, arguing that the fees were the result of unlawful collusion. The Court oversaw several years of discovery and motions, including reopening discovery and ultimately granting several million dollars in fees and expenses to Plaintiffs' counsel due to Delta's discovery blunders.

On March 28, 2017, the Court granted summary judgment to Defendants. Plaintiffs appealed. Two days after holding oral argument, the Eleventh Circuit Court of Appeals affirmed. Presently before the Court are Defendants' bills of costs, both of which Plaintiffs oppose.

II. Discussion

Federal Rule of Civil Procedure 54(d)(1) provides that “[u]nless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney's fees—should be allowed to the prevailing party.” The rule goes on to provide that if the clerk assesses costs against the non-prevailing party, the non-prevailing party has five days to move the Court to review the clerk's assessment of costs.

The Eleventh Circuit has recognized that although Federal Rule of Civil Procedure 54(d) expresses a presumption in favor of awarding costs to the prevailing party, the language of the rule does not prevent a court from denying costs to a prevailing party. See Gilchrist v. Bolger, 733 F.2d 1551, 1556–57 (11th Cir. 1984). Because the Eleventh Circuit views the denial of costs as a penalty assessed against the prevailing party, it is incumbent upon the losing party to overcome the presumption that costs should be awarded to the prevailing party. See id. Further, where a trial court does require a prevailing party to bear its own costs, “the court must give reason for its denial of costs so that the appellate court may have some basis upon which to determine if the trial court acted within its discretionary power.” Id. at 1557.

Courts consider a variety of factors in determining whether awarding costs is appropriate. These include (1) the closeness and difficulty of the case; (2) any misconduct by the prevailing party; (3) good faith by the losing party; (4) limited financial resources of the losing party; (5) whether an award of costs could have a chilling effect on future plaintiffs bringing claims; and (6) the public importance of the case. United States ex rel. Saldivar v. Fresenius Med. Care Holdings, Inc., 291 F. Supp. 3d 1345, 1349 (N.D. Ga. 2017).

The Court will first analyze the equitable factors to determine whether awarding costs in general is appropriate. Then, to the extent it is necessary, the Court will turn to the specific costs for which Defendants seek reimbursement.

A. Equitable Factors

Five of the six equitable factors may be analyzed identically for Delta and AirTran. Only the second factor, misconduct by the prevailing party, will require separate analyses.

*2 First, the Court concludes that, although the case was lengthy, required a great deal of discovery and motions practice, and resulted in numerous Court orders, it was not particularly close. This is not a case that involved multiple novel legal issues. Further, although Plaintiffs argue that they “presented evidence of multiple plus factors,” [718] at 7, Defendants prevailed on all counts. Further, as noted, the United States Court of Appeals for the Eleventh Circuit summarily affirmed this Court's ruling two days after oral argument. On the other hand, however, this case was not frivolous. It raised interesting questions of law and was more complicated than a typical lawsuit. Therefore, this factor weighs in favor of granting costs, but only slightly.

Next, the Court finds that Plaintiffs litigated the case in good faith and have fewer financial resources than Defendants. These factors therefore would weigh against granting costs. However, “a losing party's good faith and limited financial resources are not sufficient on their own to overcome the presumption in favor of awarding costs.” Pickett v. Iowa Beef Processors, 149 F. App'x 831, 832 (11th Cir. 2005).

Turning to any potential chilling effect, the Court concludes that any such effect would be somewhat greater here than in a typical case. Plaintiffs sought small amounts of damages each, and now face being responsible for reimbursement of a substantial amount of costs. This factor therefore weighs somewhat against awarding costs.

Similarly, although the public interest of the case may be greater than average, because Defendants prevailed on all counts, this factor does not support denying costs. This factors therefore weighs slightly against awarding costs.

Now is the point at which the Court must analyze Defendants' requests for costs separately: whether there was misconduct by the prevailing party. The Court first will analyze AirTran's request. Although Plaintiffs refer to misconduct by “Defendants” in opposing AirTran's request for costs, the truth is that the Court found no misconduct by AirTran.[1] Therefore, this factor weighs in favor of granting costs to AirTran.

In summary, for AirTran, the factors are mixed. The fact that Defendants prevailed unequivocally on all counts and AirTran's good faith weigh in favor of granting costs. The factors that weigh against granting costs are Plaintiffs' good faith and limited financial resources, the potential chilling effect, and the public importance of the lawsuit. Therefore, the Court concludes that the equitable factors weigh in favor of granting some, but not all, costs to AirTran.

Specifically, the Court finds that an award to AirTran of half its costs is appropriate. See Friends of Everglades v. S. Fla. Water Mgmt. Dist., 865 F. Supp. 2d 1159, 1169 (S.D. Fla. 2011) (“Weighing the equities for and against an award of transcripts, with the presumption in favor of awarding costs under Rule 54, the Court orders that Plaintiffs and the Tribe are liable to [Defendant] for half the cost of the transcripts ....”); see also Saldivar, 291 F. Supp. 3d at 1357 (“[T]he Court's discretion in awarding or denying costs exists so that it may consider equity and adjust as needed, particularly in cases such as this one.”).

The factor regarding the good faith of the prevailing party looks different for Delta. As the Court stated in an order in 2012, “issues with document production have hounded Delta from the beginning of this litigation and since it received the DOJ's bag-fee [Civil Investigative Demand]. Nevertheless, Delta repeatedly represented to the Court and Plaintiffs that it had produced ‘a full and complete record.’ Time has proved those representations to be woefully inaccurate.” [302] at 42 n.13. In 2015, the Court ordered [548] Delta to pay $2,718,795.05 to Plaintiffs' counsel in fees and expenses incurred as a result of Delta's violations of its discovery obligations. This factor therefore weighs against granting costs to Delta. In fact, it weighs so heavily against granting costs that the Court concludes that it, combined with the other two factors weighing against costs, leads to the result that an award of costs to Delta would be inequitable. See Wheatley v. Moe's Sw. Grill, LLC, 580 F. Supp. 2d 1319, 1323 (N.D. Ga. 2008) (“Because of Defendants' numerous discovery violations, it would be highly improper to award costs to them.”). Delta's request for costs will therefore be denied.

B. AirTran's Costs

*3 Now the Court turns to the specific costs AirTran seeks. In total, AirTran seeks $283,340.79. The Court finds that $254,728.64 of these costs are recoverable. As discussed above, the balance of the equitable factors leads the Court to award half these costs, or $127,364.32.

First, AirTran seeks $165,906.85 in e-discovery charges. Costs “for exemplification and the costs of making copies” are taxable for copies “necessarily obtained for use in the case.” 28 U.S.C. § 1920(4). Plaintiffs object to $121,558.08 of AirTran's costs because they are for TIFF conversion. This refers to converting digital files from a native format[2] to TIFF[3] for final production.

The Court previously has noted that it “assumes, but does not decide, that converting files to TIFF is the sort of ‘modern-day equivalent’ of paper copying that would be taxable as necessary copying costs.” Akanthos Capital Mgmt., LLC v. CompuCredit Holdings Corp., 2 F. Supp. 3d 1306, 1316 (N.D. Ga. 2014); see also Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158, 167 (3d Cir. 2012) (“[T]he conversion of native files to TIFF ... [is] generally recognized as taxable ‘making copies of materials.’ ”).

In this case, Plaintiffs asked for native format and production in hard copy (paper) format. AirTran objected and informed Plaintiffs that it intended to produce in TIFF rather than both native and paper format because this was the industry standard and satisfied its obligation under Rule 34(b)(2)(E)(ii) to produce electronically stored information “in a reasonably usable form.” Plaintiffs never objected to this.

Although there was no written agreement or Court order memorializing AirTran's decision, in such cases the Court “may have to resort to a determination of well-grounded expectations about default requirements in the absence of contrary agreements, rules, or orders.” CBT Flint Partners, LLC v. Return Path, Inc., 737 F.3d 1320, 1330 (Fed. Cir. 2013).

Further, AirTran notes, TIFF costs were approximately $0.03 per page. However, production in paper form would have cost between $0.08 and $0.12 per page. For the 15,735,075 pages that Plaintiffs requested, production in paper format would have cost (at a minimum) an additional $786,753.75. Although Plaintiffs now argue that they would have agreed to accept just native format, they did not communicate this to AirTran.

Under these circumstances, the Court concludes that the TIFF conversion costs are taxable.

Plaintiffs also argue that AirTran should not be reimbursed the $16,949.74 it seeks for creating load files for the production of TIFF images or $21,353.70 for the production of native files. However, the costs for load files are recoverable. See id. at 1332 (holding that load files are comparable to slip sheets and therefore recoverable). Further, as AirTran points out, Plaintiffs have not argued that they did not use the load or native files or that they could have used its production without these files. The Court therefore concludes that the full amount of e-discovery costs to AirTran is taxable.

*4 AirTran also seeks $67,751.76 in deposition and exhibit costs. Recovery of “[f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case” is permissible. 28 U.S.C. § 1920(2).

Plaintiffs object on the basis that AirTran seeks costs for depositions not cited in its summary judgment briefing. However, whether depositions are cited in briefing is not determinative of whether costs may be awarded. See Harrison v. Belk, Inc., 740 F. App'x 708, 709 (11th Cir. 2018) (per curiam). Plaintiffs have not argued that the depositions (some of which were of the named Plaintiffs) were unrelated to an issue in the case at the time they were taken.

Plaintiffs also challenge approximately $1907 for the costs of deposition exhibits. However, as AirTran points out, these copies were necessary to distribute to the Court reporter, the witness, and attending counsel.

Plaintiffs also challenge $18,016 in videographer fees. Videotaped depositions are taxable if the depositions were properly noticed and no objection was made at the time. See Morrison v. Reichhold Chems., Inc., 97 F.3d 460, 464–65 (11th Cir. 1996) (per curiam). Plaintiffs not only did not object to the videotaped depositions, they themselves noticed the video depositions of Defendants' witnesses. The fact that the case never went to trial does not change the result. See Colony Regency Partners, Ltd. v. Lexington Ins. Co., No. 1:04-cv-121-WSD, 2005 WL 8154820, at *1 (N.D. Ga. Dec. 20, 2005).

Plaintiffs further seek to deduct $8450 from the deposition costs for video synchronization. AirTran contends that it already deducted these costs where they were a separate line item for a deposition. The Court has reviewed AirTran's bill of costs, receipts, and declaration, along with Plaintiffs' objections and concludes that Plaintiffs are partially correct. Specifically, the Court finds that AirTran erroneously included video synchronization fees for the following witnesses: Stephen Powell ($900), Laura Gale ($600), Hal Singer ($3750), Henryk Jachimowicz ($1350), David Terry ($750), and David Watson ($300).[4] This totals $7650, and the Court will reduce the taxable costs by this amount.

Plaintiffs also seek to deduct $27,778.79 in costs of transcripts for depositions and hearings that occurred after the original discovery period closed. Specifically, Plaintiffs argue that these costs should be taxed to Delta rather than themselves. However, Plaintiffs cite no law in support of their argument, and the Court is aware of none. Thus, the Court will not deduct these costs.

Plaintiffs seek to deduct $1,111.45 in costs of deposition and hearing transcripts that they argue were required because of AirTran's discovery misconduct. However, as stated, the Court did not find AirTran guilty of any such misconduct. Thus, the Court will not deduct these costs.

Plaintiffs next seek to reduce AirTran's $67,751.76 in deposition costs by over $13,000, arguing that charges for expedited transcript delivery are justifiable only if a deposition is within thirty days of a filing deadline. However, whether to award such costs is within the district court's discretion. See Maris Distrib. Co. v. Anheuser-Busch, Inc., 302 F.3d 1207, 1226 (11th Cir. 2002). Plaintiffs noticed and took fourteen days of depositions within a forty-eight-day period (that encompassed both AirTran's deadline to file an opposition to Plaintiffs' class certification motion and the original discovery deadline). See Kearney v. Auto-Owners Ins. Co., No. 8:06-cv-595-T-24-TGW, 2010 WL 1856060, at *2 (M.D. Fla. May 10, 2010) (deeming expedited transcripts necessary in light of looming discovery deadline). Plaintiffs then noticed and took four days of depositions within nine business days (requiring transcripts to prepare for depositions to follow). See Procaps v. Pantheon Inc., No. 12-cv-24356-CIV-GOODMAN, 2016 WL 411017, at *5 (S.D. Fla. Feb. 2, 2016) (awarding costs for expedited transcripts based on aggressive litigation and need to work under deadline pressure). Thus, the costs for expedited transcripts are taxable.

*5 Plaintiffs argue that it should not be required to pay the $20,962.15 that AirTran seeks for its share of the special master's fees. The Eleventh Circuit has held that special master fees are not taxable as costs under § 1920. Perez v. Carey Int'l, Inc., 373 F. App'x 907, 914 (11th Cir. 2010). Although earlier cases held that a district court had discretion to award special master's fees as costs, the Eleventh Circuit held that these cases likely did not survive Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437 (1987), which limited the taxation of costs to those set forth in 28 U.S.C. §§ 1821 and 1920. The cases to which AirTran cites are either before Perez or fail to consider the statutory limits. The Court therefore will deduct $20,962.15 from the costs AirTran seeks.

AirTran seeks $27,543.33 in copying costs. Taxation of such costs is permissible if “the prevailing party could have reasonably believed that it was necessary to copy the papers at issue.” E.E.O.C. v. W&O, Inc., 213 F.3d 600, 623 (11th Cir. 2000).

Plaintiffs challenge the costs for various tabs, binders, labor, and copies made for the convenience of counsel. Extra copies made solely for attorneys' convenience are not taxable. See Fressell v. AT&T Techs., Inc., 103 F.R.D. 111, 115–16 (N.D. Ga. 1984). Plaintiffs argue that AirTran only guesses at what was printed based on the timeline of the case.

However, AirTran has provided the Court with information on the copies and their relation to various aspects of the case. The Court finds that this meets AirTran's burden.

Plaintiffs also challenge AirTran's request for taxation of costs for its color copies. It is AirTran's burden to demonstrate that color copies were necessary for the case. Corsair Asset Mgmt. v. Moskovitz, 142 F.R.D. 347, 352 (N.D. Ga. 1992). AirTran contends that the copies are permissible. See Arcadian Fertilizer, L.P. v. MPW Indus. Servs., Inc., 249 F.3d 1293, 1296–97 (11th Cir. 2001); Crouch v. Teledyne Cont'l Motors, Inc., No. 10-72-KD-N, 2013 WL 203408, at *8 (S.D. Ala. Jan. 17, 2013). AirTran argues that it only used color copies when necessary to retain the meaning of the text involved, such as in maps, charts, graphs, documents with tracked changes or color coding, and various spreadsheets. The Court finds this is reasonable and concludes that the costs for color copies for these documents are taxable.

AirTran seeks $1203.70 in transcript costs for eight hearings. Plaintiffs argue that AirTran fails to demonstrate that certain of the transcripts were necessary. However, Plaintiffs' argument—that certain transcripts were from hearings “when AirTran had little or nothing at stake”—does not suffice. [719] at 18–19. The Court finds that AirTran's representation of necessity, see [698-1] at 41–42, meets its burden. The Court therefore deems these costs taxable.

In total, therefore, $254,728.64 of AirTran's costs are taxable. Based on the balance of the equitable factors discussed above, the Court awards half of this to AirTran, for a total of $127,364.32.

III. Conclusion

For the foregoing reasons, the Court denies Delta's request for costs but grants AirTran costs in the amount of $127,364.32.

IT IS SO ORDERED this 30th day of July, 2019.

To the extent Plaintiffs argue that they simply chose not to pursue sanctions against AirTran because Delta's misconduct was worse, this is not enough to justify not awarding (or reducing) costs.

Native format is simply “the file structure defined by the original creating application.” THE SEDONA CONFERENCE, THE SEDONA CONFERENCE GLOSSARY: E-DISCOVERY & DIGITAL INFORMATION MANAGEMENT 35 (Sherry B. Harris et al. eds., 3d ed. 2010).

TIFF stands for “Tagged Image File Format.” It is a “graphic file format[ ] for storing bit-mapped images, with many different compression formats and resolutions” that is “widely used and supported” for e-discovery. SEDONA CONFERENCE GLOSSARY, supra note 1, at 50. TIFF is “the agreed-upon default format for production of ESI ....” Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158, 167 (3d Cir. 2012).

This list includes billing for “synched CDs,” “video synchronization,” or similar line items. It does not include fees for “CDs” with no mention of synchronization.