WILLIAM G.H. STEPHENS V, an individual, Plaintiff, v. D.B. ROBERTS, INC., a Delaware corporation, Defendant 3:20-cv-00673-BR United States District Court, D. Oregon Filed September 08, 2021 Counsel JOSE A. KLEIN, RUSSELL GEORGE GOMM, Klein Munsinger LLC, 1215 S.E. Eighth Avenue, Suite F, Portland, OR 97214, (503) 568-1078, Attorneys for Plaintiff LAURA E. ROSENBAUM, RYAN KUNKEL, Stoel Rives LLP, 760 S.W. Ninth Ave., Suite 3000, Portland, OR 97205, (503) 294-9642, Attorneys for Defendant Brown, Anna J., Senior United States District Judge OPINION AND ORDER *1 This matter comes before the Court on the Bill of Costs of Defendant D.B. Robert, Incorporated (#51). The Court concludes the record is sufficiently developed to resolve Defendant's Bill of Costs without oral argument. For the reasons that follow, the Court awards costs to Defendant in the amount of $2,493.35. BACKGROUND On March 11, 2020, Plaintiff William G.H. Stephens filed an action against Defendant for failure to provide reasonable accommodation in violation of Oregon Revised Statutes § 659A.118, failure to engage in the interactive process in violation of Oregon Revised Statutes § 659A.112 and Oregon Administrative Rule § 839-006-0206(6), and disability discrimination in violation of Oregon Revised Statutes § 659A.112. On April 9, 2021, Plaintiff filed a Motion for Partial Summary Judgment. On May 7, 2021, Defendant filed a Cross-Motion for Summary Judgment. On July 27, 2021, the Court entered an Opinion and Order in which it granted Defendant's Motion, denied Plaintiff's Motion, and dismissed Plaintiff's claims with prejudice. On August 10, 2021, Defendant filed a Bill of Costs. On August 24, 2019, Plaintiff filed an Objection to Defendant's Cost Bill. STANDARDS Absent a showing of circumstances not relevant here, an award of costs is generally governed by federal law. See In re Merrill Lynch Relocation Mgt., Inc., 812 F.2d 1116, 1120 n.2 (9th Cir. 1987)(dictum). Accordingly, the Court applies federal law to the issue of awarding costs in this case. 28 U.S.C. § 1920 allows a federal court to tax specific items as costs against a losing party pursuant to Federal Rule of Civil Procedure 54(d)(1). Section 1920 provides: A judge or clerk of any court of the United States may tax as costs the following: (1) Fees of the clerk and marshal; (2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (5) Docket fees under section 1923 of this title; (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree. The court has broad discretion to allow or to disallow a prevailing party to recoup costs of litigation. The court's “discretion, however, does not include ‘the authority to tax costs beyond those authorized by statute.’ ” Atl. Inertial Sys. Inc. v. Condor Pac. Indus. of Cal., Inc., No. 208CV02947JHNFMO, 2012 WL 12878308, at *1 (C.D. Cal. Jan. 19, 2012)(quoting Johnson v. Pac. Lighting Land Co., 878 F.2d 297, 298 (9th Cir. 1989)). See also Grove v. Wells Fargo Fin. Cal., Inc., 606 F.3d 577, 579 (9th Cir. 2010)(“Section 1920 define[s] the full extent of a federal court's power to shift litigation costs absent express statutory authority.”). *2 Federal Rule of Civil Procedure 54(d)(1) “creates a presumption in favor of awarding costs to a prevailing party, but vests in the district court discretion to refuse to award costs.” Ass'n of Mexican-American Educators v. State of Cal., 231 F.3d 572, 591 (9th Cir. 2000). DISCUSSION Defendant seeks costs of $5,672.99 comprised of fees of the clerk, videographer appearance fees, court reporter appearance fees, fees for written deposition transcripts, and fees for electronic data. Defendant supports its Cost Bill with the Declaration of Ryan Kunkel, receipts for court-reporter fees, receipts for written deposition transcripts, and receipts for electronic data fees. Plaintiff objects to Defendant's request for fees associated with video-recorded deposition testimony and electronic data fees. I. Costs of Videotaped Depositions Defendant seeks $562.50 for the videographer's appearance fee for the deposition of Plaintiff. Plaintiff asserts the Court should not award Defendant the cost of the videographer on the ground that a videotaped deposition was unnecessary in light of the fact that Defendant also ordered a written transcript of Plaintiff's deposition. As noted, § 1920(2) permits the Court to tax as costs “[f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case.” Emphasis added. Although the Ninth Circuit has not ruled on this specific issue, several district courts within the Ninth Circuit have declined to award a party the cost of videotaped depositions when the party obtained both written and videotaped depositions and did not establish why video depositions were also necessary. For example, in Valencia v. City of Stockton the defendant requested costs for written deposition transcripts and “videotaped deposition costs.” No. 2:16-CV-2081-JAM-AC, 2018 WL 3435412, at *4 (E.D. Cal. July 13, 2018). The court denied the defendant's request for the costs of the videotaped depositions on the ground that the defendant failed to establish why the written deposition transcripts were insufficient for purposes of summary judgment. Id., at *5. Similarly, in Gunchick v. Federal Insurance Company the defendant requested the cost of the video deposition of the plaintiff. The court denied the defendant's request noting “Defendant recorded Plaintiff's deposition both stenographically and videographically.” No. CV141162RSWLPJWX, 2015 WL 4451041, at *2 (C.D. Cal. July 17, 2015). The court “doubt[ed]... the video deposition was necessarily obtained given that Defendant likely could have highlighted – and did in fact highlight – inconsistencies in Plaintiff's testimony through paper deposition transcripts.” Id. In Atlantic Inertial Systems, Incorporated v. Condor Pacific Industries of California, Incorporated, the defendants sought costs for “video services for depositions.” No. 208CV02947JHNFMO, 2012 WL 12878308, at *2 (C.D. Cal. Jan. 19, 2012). The court found the defendant had established “the video depositions were necessarily obtained for use in the case” as to the deponents who were unavailable to testify at trial. Id. The court, however, denied the defendant's request as to other videotaped depositions of witnesses who were available to testify at trial. Id. Finally, in Yeager v. Bowlin the defendants sought the cost of both written and videotaped depositions. The defendants asserted “the videotaped depositions were necessary because the Yeagers were crucial witnesses who would need to be impeached at trial and there was concern that Yeager would be unable to testify at trial due to his advanced age.” No. CIV 2:08-102 WBSJFM, 2010 WL 716389, at *3 (E.D. Cal. Feb. 26, 2010). The court denied the defendants' request for the cost of videotaped depositions: *3 This rationale fails to explain why both a videotaped and printed transcript were necessary, since a printed transcript alone could easily have been used to impeach the Yeagers and substitute for any inability of Yeager to testify. Something more beyond convenience or duplication to ensure alternative methods of presenting materials at trial is needed to tax costs for both a printed and videotaped deposition transcript. Id. (quotation omitted). Although this Court is not bound by Valencia, Gunchick, or Atlantic, the Court finds them to be well-reasoned. Here Defendant does not allege Plaintiff would not be available to testify at trial or explain why the jury would have been unable to evaluate credibility based on written transcripts. The Court, therefore, concludes on this record that Defendant fails to establish that Plaintiff's videotaped deposition was “necessarily obtained for use” in addition to the written transcript. Accordingly, the Court denies Defendant's request for the costs of $562.50 for the videographer's appearance fee. III. Electronic Data Fees Defendant also seeks $2,617.14 for “printing, reproduction, and electronic document storage fees.” Decl. of Ryan Kunkel at 2. Kunkel states in his Declaration: Stoel Rives incurred charges of $2,617.14 related to loading, processing, TIFFing, batching, hosting, exporting, managing and producing electronic data for this case. * * * [Defendant] relied upon the services of [Stoel Rives's data processing vendors] in order to search and produce documents as required by Local Rule 26-7 and to respond to plaintiff's discovery requests, to prepare for depositions of plaintiff and Nikki Stephens, to prepare for the defense of depositions of Donna Hilenski, Sandra Solis and Jennifer Davies, and to prepare its motion for summary judgment. Kunkel Decl. at ¶ 5. Plaintiff asserts the Court should not allow these costs because they do not relate to “making copies” and are not allowed under 28 U.S.C. § 1920. Pl.'s Obj. at 2-3. The Ninth Circuit has not directly addressed the issue. Other Circuit Courts of Appeal, however, have concluded certain limited e-discovery costs related to scanning hardcopy documents, converting electronic files to non-editable formats such as TIFF, and burning files onto discs, may be recovered under 28 U.S.C. § 1920(4). See Country Vintner of N.C., LLC v. E. &amp; J. Gallo Winery, Inc., 718 F.3d 249, 260 4th Cir. 2013); Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158, 171 (3d Cir. 2012). On the other hand, courts have not permitted costs for collecting and preserving electronically stored information, processing and indexing electronically stored information, extracting metadata, keyword searching, and optical character recognition on the ground that they do not fall within the scope of 28 U.S.C. § 1920(4). Race Tires, 674 F.3d at 167, 171; Country Vintner, 718 F.3d at 252–53, 257, 260. The Third Circuit explained the distinction between the electronic costs it allowed and those it did not allow as follows: Section 1920(4) does not state that all steps that lead up to the production of copies of materials are taxable. It does not authorize taxation merely because today's technology requires technical expertise not ordinarily possessed by the typical legal professional. It does not say that activities that encourage cost savings may be taxed. Section 1920(4) authorizes awarding only the cost of making copies. *4 Race Tires, 674 F.3d at 169 (footnote omitted). The Third Circuit recognized “extensive processing” may be “essential to make a comprehensive and intelligible production” of electronically stored information (ESI). Id. Specifically, [h]ard drives may need to be imaged, the imaged drives may need to be searched to identify relevant files, relevant files may need to be screened for privileged or otherwise protected information, file formats may need to be converted, and ultimately files may need to be transferred to different media for production. Id. Nevertheless, “that does not mean that the services leading up to the actual production constitute ‘making copies’ ” within the meaning of § 1920. Id. The Third Circuit noted: The process employed in the pre-digital era to produce documents in complex litigation similarly involved a number of steps essential to the ultimate act of production. First, the paper files had to be located. The files then had to be collected, or a document reviewer had to travel to where the files were located. The documents, or duplicates of the documents, were then reviewed to determine those that may have been relevant. The files designated as potentially relevant had to be screened for privileged or otherwise protected material. Ultimately, a large volume of documents would have been processed to produce a smaller set of relevant documents. None of the steps that preceded the actual act of making copies in the pre-digital era would have been considered taxable. And that is because Congress did not authorize taxation of charges necessarily incurred to discharge discovery obligations. It allowed only for the taxation of the costs of making copies. Id. The Third Circuit pointed out that the Supreme Court has “accorded a narrow reading to the cost statute in other contexts,” and “[n]either the degree of expertise necessary to perform the work nor the identity of the party performing the work of making copies is a factor that can be gleaned from § 1920(4).” Id. at 169, 171. “Nor may the courts invoke equitable concerns ... to justify an award of costs for services that Congress has not made taxable.” Id. at 170. The Third Circuit, therefore, allowed the defendant only the costs for the conversion of native files to TIFF and PDF formats and the transfer of files onto CDs. The Fourth Circuit found the reasoning of Race Tires to be persuasive and concluded only the defendant's request for “the conversion of native files to TIFF and PDF formats, and the transfer of files onto CDs, constituted making copies under § 1920(4).” Country Vintner, 718 F.3d at 261. The Fourth Circuit also concluded the defendant's costs for “[e]xtracting text and metadata” and “loading ... ESI into a review platform” were not taxable as exemplification under § 1920. Id. at 262. This Court finds these cases to be persuasive and adopts their reasoning. The Court, therefore, concludes Defendant's e-discovery costs related to scanning hardcopy documents, converting electronic files to non-editable formats such as TIFF, and burning files onto discs, are allowable costs that Defendant may recover under 28 U.S.C. § 1920(4). The Court also concludes Defendant's costs for collecting and preserving electronically stored information, processing and indexing electronically stored information, extracting metadata, keyword searching, and optical character recognition do not fall within the scope of 28 U.S.C. § 1920(4) and, therefore, are not taxable costs that Defendant may recover. Defendant, however, does not specify in either Kunkel's Declaration or the exhibits thereto what portion, if any, of the requested $2,617.14 sought by Defendant as electronic storage costs is related to scanning hardcopy documents, converting electronic files to non-editable formats such as TIFF, and burning files onto discs. On this record, therefore, the Court concludes Defendant has not established that its electronic data costs are recoverable pursuant to § 1920. *5 Accordingly, the Court denies Defendant's request for electronic data costs in the amount of $2,617.14. The Court, however, GRANTS Defendant leave to file a renewed Cost Bill and evidence to support a request for electronic data fees, if any, that satisfy the criteria for taxable fees as set out in this Opinion and Order not later than September 21, 2021. Plaintiff may file a Response not later than October 5, 2021. CONCLUSION For these reasons, the Court AWARDS costs to Defendant in the amount of $2,493.35. The Court GRANTS Defendant leave to file a renewed Cost Bill and evidence to support a request for electronic data fees, if any, that satisfy the criteria for taxable fees as set out in this Opinion and Order not later than September 21, 2021. Plaintiff may file a Response not later than October 5, 2021. IT IS SO ORDERED. DATED this 8th day of September, 2021. Footnotes  See Exhibit 1 for the Court's calculation of costs.