In Re Aspartame Antitrust Litigation

Citations: 817 F. Supp. 2d 608; 2011 U.S. Dist. LEXIS 118226; 2011 WL 4793239Docket: 2:06-cv-01732

Court: District Court, E.D. Pennsylvania; October 5, 2011; Federal District Court

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The court considered the Plaintiffs' motion regarding the Defendants' bills of costs under Federal Rule of Civil Procedure 54(d) on October 5, 2011. The case involved several plaintiffs, including Nog, Inc. and Sorbee International Ltd., who filed complaints alleging that Defendants engaged in a horizontal antitrust conspiracy to manipulate the market and set high prices for Aspartame, violating the Sherman Antitrust Act. The court consolidated the complaints and previously ruled in favor of certain Defendants, granting summary judgment due to the plaintiffs' claims being time-barred.

On July 26, 2011, costs totaling $192,373.87 for the Holland defendants, $165,120.73 for the Ajinomoto defendants, and $215,540.53 for the NutraSweet Company were awarded. The Plaintiffs sought to deny or reduce these costs. The court noted that under Rule 54(d)(1), prevailing parties are generally entitled to recover costs, excluding attorney's fees, and outlined the specific categories of recoverable costs under 28 U.S.C. 1920. The court has discretion in awarding costs and reviews such bills de novo.

Ultimately, the court issued an order that partially granted and partially denied the Plaintiffs' motion regarding the Defendants' bills of costs.

Costs awarded include significant e-discovery expenses related to the creation of a litigation database, processing and hosting electronic data, conducting keyword and privilege screens, making documents OCR searchable, and extracting metadata. Defendants seek reimbursement for these costs under 28 U.S.C. 1920(4), which permits taxing fees for exemplification and necessary copying of materials used in the case. The legal landscape regarding e-discovery costs is evolving, with varying court decisions. For instance, some courts, like in Fells and Klayman, denied costs for initial electronic processing and expert searches, while others, such as Race Tires America and Lockheed Martin, awarded costs for e-discovery activities due to the complexity and volume of data involved. In this case, defendant Ajinomoto processed approximately 87.73 gigabytes of data at a cost of $135,696, and the defendants collectively managed over 1.05 terabytes of documents, illustrating the substantial volume of electronic evidence. The parties agreed to utilize e-discovery methods to minimize costs through keyword searches and de-duplication, which the court recognizes as an efficient approach given the staggering volume of documents, ultimately supporting the argument that electronic discovery can reduce overall costs compared to traditional methods.

Defendants effectively utilized third-party vendors for keyword searches and deduplication, resulting in a significant reduction of potentially responsive documents—87% for Holland Sweetener and 38.5% for NutraSweet—yielding substantial cost savings. Costs awarded include those for creating a litigation database, data storage, imaging hard drives, keyword searches, deduplication, data extraction and processing, and privilege screening. Additionally, costs for hosting data post-document production were granted, acknowledging ongoing discovery despite the summary judgment ruling. Technical support costs were also approved, following precedents that recognize such expenses as necessary for document production.

The Court awarded Holland Sweetener $26,244.36 for the "Production Processing Fee-Load File," essential for loading TIFF documents onto review platforms, and NutraSweet $1,200.00 for creating Concordance load files, noting that plaintiffs had requested such files during discovery. The Court dismissed plaintiffs' objection regarding the Concordance load files, emphasizing that the chosen format should not penalize NutraSweet.

However, the Court denied Ajinomoto's request for $22,633.00 for the Attenex Document Mapper, categorizing it as an advanced tool beyond necessary litigation functions, and similarly rejected the $5,449.00 cost for a concept-based review platform and analytics. Tech Usage fees related to Document Mapper were also denied, reinforcing the distinction between necessary litigation costs and those for counsel's convenience.

Defendants claim the $21,120 in Tech Usage Fees as a necessary cost for accessing tools. The Court finds that the Tech Usage fee is a general charge encompassing the use of Document Mapper, data hosting, and Attenex Workbench, all taxable services. The Court notes that Tech Hosting fees are incurred monthly, regardless of Document Mapper's usage, leading to a reduction of $11,920 from defendants' claimed Tech Usage fees, awarding Ajinomoto $9,200 instead.

Plaintiffs object to costs associated with electronic data recovery and tape restoration, arguing these tasks are typically performed by attorneys or paralegals. The Court clarifies that electronic data recovery involves restoring password-protected and corrupted files, while tape restoration converts archived documents into usable formats—tasks requiring technical expertise. Citing precedents, the Court agrees to allow these costs.

Regarding depositions, 28 U.S.C. 1920(2) permits taxation of fees for transcripts necessary for the case, but a party cannot recover costs for both transcripts and videotapes of depositions. The Court permits Ajinomoto to recover costs for the videotape of Bruce Ritenberg’s deposition, deemed reasonably necessary due to his age, while denying NutraSweet's request for the videotape of David Waxler’s deposition, allowing only for the transcript instead. NutraSweet's costs will be reduced by $880. Additionally, shipping and handling costs for depositions are not recoverable, although copying costs for necessary exhibits and rough drafts of depositions are permitted.

The court affirms the awarding of costs for deposition-related expenses, including $1,492.00 to NutraSweet for the deposition of John Beyer, which covers exhibits and a rough draft. Holland Sweetener is similarly entitled to recover costs for depositions of Bruce Ritenberg, David Waxler, and John Beyer. However, the court denies NutraSweet's requests for $1,215.34 for Bates labeling and $607.67 for confidentiality labeling, citing that such costs are not recoverable under § 1920. Although costs for metadata extraction and production compliance are deemed appropriate, the lack of a breakdown in "Production Support Services" leads to a 50% deduction, awarding $2,050.00 instead of the requested $4,100.00. Regarding scanning and copying costs, the court finds the defendants’ charges of $0.13-$0.15 per page reasonable, affirming the costs of $270.79 for Ajinomoto and $936.71 for Holland Sweetener, while noting that other courts have upheld $0.25 per page as reasonable.

Plaintiffs objected to the color scanning costs incurred by Ajinomoto, arguing they never received color copies. Defendants contended that color scanning was necessary to maintain document integrity and legibility. The court ruled that defendants can recover costs for copying potentially responsive documents, irrespective of whether they were produced. However, the court found that not all color scanning costs were justified, as only graphs and charts required color scanning, while other documents did not. Consequently, the court reduced the color copying costs by 50% due to insufficient justification for the remaining color scans.

Additionally, NutraSweet's claim for $3,463.52 in costs for "black and white copies" was deemed insufficiently itemized. The court noted that NutraSweet failed to specify which documents were photocopied or justify the necessity of these costs, leading to a denial of this claim.

Defendants were allowed to recover the full costs of creating CDs and DVDs for electronic documents, as the expenses included not just the blank media but also the transfer of information. The court found the charges from various third-party vendors to be reasonable.

Lastly, the court denied costs for converting TIFF documents to PDF format, as this conversion was deemed unnecessary for litigation, having been performed for the convenience of counsel.

Holland Sweetener's request for reimbursement of $600.00 for hard drives is denied due to insufficient itemization; there is no explanation for their use, and an affidavit from counsel asserting the costs' necessity does not clarify their nature. Similarly, a $300.00 fee for technical support related to the hard drives is denied for the same reason. In contrast, NutraSweet's $900.00 hard drive charge is granted, as it pertains to necessary services by a third-party vendor for discovery compliance. Holland Sweetener's $60.29 freight charge is denied because it is related to shipping costs. However, the court finds Holland Sweetener's $986.50 data management fee and $1,250.00 media processing fee sufficiently documented and awards these costs. The court also notes a discrepancy between the total requested costs and those granted, which does not affect the awards except for Holland Sweetener, whose total awarded is adjusted to $195,398.82, aligning with their original request. A detailed chart of awarded costs by category is included, reflecting amounts requested and granted for multiple parties involved.

Costs associated with data management and litigation for Holland Sweetener and NutraSweet were detailed, with specific charges outlined for various services. Holland Sweetener incurred expenses such as $100,000 for native file processing, $26,244.36 for production processing, and $31,593.36 for Ontrack Inview Document TIFF production, totaling $202,476.82, with $195,398.82 deemed undisputed. NutraSweet's costs included $73,940 for data processing, $18,320 for search-based filtering, and $35,358.24 for image capture, resulting in a total of $218,082.99, with $194,375.19 being undisputed.

The court granted in part and denied in part the plaintiffs' motion for costs, awarding $120,364.17 to Ajinomoto, $195,398.82 to Holland Sweetener, and $194,375.19 to NutraSweet. Additional notes indicated the parties involved and provided context for the awarded costs, including a reference to Attenex Workbench for data extraction and the denial of certain tech usage fees due to lack of breakdown. Holland Sweetener did not request shipping and handling costs, and a specific vendor's charge for DVD creation was considered reasonable based on average pricing.