                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

                                               )
CAROLINE HERRON,                               )
                                               )
               Plaintiff,                      )
                                               )
       v.                                      )               Civil Case No. 10-943-RMC
                                               )
FANNIE MAE, et al.,                            )
                                               )
               Defendants.                     )
                                               )



                            MEMORANDUM OPINION AND ORDER

               On March 8, 2016, the Court entered judgment in favor of Defendants in this

case. See 3/8/2016 Opinion [Dkt. 163]; 3/8/2016 Order [Dkt. 164]. While Plaintiff’s appeal of

that judgment was pending, Defendant Federal National Mortgage Association (Fannie Mae)

submitted a Bill of Costs to the Court. See Bill of Costs [Dkt. 166] (First Bill of Costs). In an

April 19, 2016 Minute Order, the Court stated that “While the Court finds that the costs that

Fannie Mae has requested are not ‘excessive or unallowable’ and that they are recoverable under

Federal Rule 54(d)(1) of Civil Procedure and 28 U.S.C. § 1920, it hereby denies Defendants’ Bill

of Costs without prejudice pending resolution of the appeal.”

               On June 27, 2017, the United States Court of Appeals for the District of Columbia

Circuit affirmed the Court’s judgment, see Mandate [Dkt. 188]. Fannie Mae has accordingly

refiled its Bill of Costs, see Notice and Refiling of Bill of Costs [Dkt. 185] (Refiled Bill of

Costs), and Plaintiff Herron has renewed her earlier opposition. See Pl.’s Objections to Defs.’

Bill of Costs [Dkt. 186] (Opp’n). In its April 19, 2016 Minute Order, the Court found that

Fannie Mae’s costs were recoverable, and the Court finds so here as well.
                                                   1
                                 I. STANDARD OF REVIEW

               Federal Rule of Civil Procedure 54(d)(1) gives the Court discretion to award fees

to a prevailing party that fall under certain enumerated categories found in 28 U.S.C. § 1920

(2012). See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987). Further,

28 U.S.C. § 1961 states that “[i]nterest shall be allowed on any money judgment in a civil case.”

That interest is assessed from the date of the original judgment of March 8, 2016. See Georgia

Ass’n of Retarded Citizens v. McDaniel, 85 F.2d 794, 799 (1988). Interest accrues until the date

of payment. 28 U.S.C. § 1961(b). “[T]he allowance, disallowance, or apportionment of costs is

in the sound discretion of the district court.” Moore v. Nat’l Ass’n of Sec. Dealers, Inc., 762 F.2d

1093, 1107 (D.C. Cir. 1985). “Unsuccessful parties bear the burden of showing circumstances

sufficient to overcome the presumption in favor of awarding costs to the prevailing party.” Long

v. Howard Univ., 561 F. Supp. 2d 85, 96 (D.D.C. 2008) (citing Baez v. U.S. Dep’t of Justice, 684

F.2d 999, 1004 (D.C. Cir. 1982)).

                                         II. ANALYSIS

               The only difference between Fannie Mae’s First Bill of Costs and Refiled Bill of

Costs is that the Refiled Bill includes interest imputed from the day of judgment; the underlying

costs have not changed. Similarly, Ms. Herron’s renewed Opposition remains substantively

similar to the Opposition she filed in response to Fannie Mae’s First Bill of Costs.1 Ms. Herron




1
  In her renewed Opposition, Ms. Herron dropped some arguments from her initial Opposition
that are no longer relevant; for example, Ms. Herron originally argued—and the Court agreed—
that Fannie Mae’s First Bill of Costs was untimely, which is no longer an issue here.
                                                2
objects to Fannie Mae’s proposed costs associated with: (1) five deposition transcripts; (2)

witness fees for three witnesses; and (3) the conversion of physical documents into TIFF files.2

       A. Deposition Transcripts

               Ms. Herron contests Fannie Mae’s request for transcript costs associated with five

deposition witnesses whose testimony related only to damages. Opp’n at 4. She argues that

because damages were not relevant to summary judgment, Fannie Mae should have waited to

depose those witnesses and sought leave to re-open discovery in the event the Court denied

summary judgment. Id.

               However, a party need not use a deposition transcript in order to recover costs

associated with its creation. The D.C. Circuit has suggested that costs are appropriate where a

deposition transcript would be used “to prepare for the trial which would have ensued had the

district judge not granted summary judgment.” Sun Ship, Inc. v. Lehman, 655 F.2d 1311, 1318

n.49 (D.C. Cir. 1981). If a litigation proceeds long enough, damages will inevitably become

relevant. There may be reasons to bifurcate discovery in particular circumstances, but the

Federal Rules do not obligate a party either to proceed through discovery in fits and starts or to

forgo costs to which it is otherwise entitled. Ms. Herron does not otherwise allege that the five

witnesses were superfluous or irrelevant. Because it was reasonable to assume that the

witnesses’ testimony would likely have been necessary had the case proceeded past summary

judgment, the Court concludes that Fannie Mae’s request for costs is reasonable.




2
  Ms. Herron does not contest Fannie Mae’s calculation of interest in its Refiled Bill of Costs,
and, thus conceded, the Court concludes that calculation is reasonable. As of July 7, 2017, the
interest amount totaled $376.56.
                                                3
       B. Witness Fees

               Ms. Herron similarly objects to Fannie Mae’s request for witness fees associated

with three witnesses whose depositions were not used in the summary judgment briefing. Opp’n

at 5. Again, the witnesses’ testimony related only to damages. For the reasons articulated above,

Fannie Mae acted reasonably in seeking discovery related to damages and is therefore entitled to

fees associated with these three witnesses.

       C. Copies

               Finally, Ms. Herron asserts that Fannie Mae is not entitled to “copying” costs

associated with creating electronic TIFF files. Ms. Herron asserts that the plain language of

§ 1920 and Local Rule 54.1(d) only allow for costs associated with the creation of physical

copies. Opp’n at 5. In Ms. Herron’s view, to do otherwise would “dispense with the ‘ordinary

meaning’ of ‘copies’ in Section 1920(4) from its widely recognized ‘making copies’ i.e., making

photocopies, to the novel and extratextual costs relating to converting discovery materials

documents to a TIFF format.” Id. at 6.

               While it does not appear that this Circuit has previously considered this question,

the courts that have considered the issue have generally concluded that “copies” under § 1920(4)

includes the creation of electronic copies such as TIFF files. See, e.g., CBT Flint Partners, LLC

v. Return Path, Inc., 737 F.3d 1320, 1329 (3d Cir. 2013); Country Vintner of N.C., LLC v. E. &

J. Gallo Winery, Inc., 718 F.3d 249, 260 (4th Cir. 2013); Balance Point Divorce Funding, LLC v.

Scrantom, 305 F.R.D. 67, 69 (S.D.N.Y. 2015). Ms. Herron argues that the Court should instead

look to the Supreme Court’s reasoning in Taniguchi v. Kan Pacific Saipan, Ltd., which held that

the plain meaning of “interpreter” in § 1920 did not include document translation services. 566

U.S. 560, 573-75 (2012).


                                                4
               However, the Court agrees with CBT Flint Partners, Country Vintner, and

Balance Point, all of which considered the issue of electronic copies after Taniguchi was

decided. Fundamentally, if a litigant wants to provide another party—or the Court—with a

document while simultaneously retaining that document for itself, it must first make a copy.

Section 1920(4) allows that party to seek costs for the creation of that copy. The fact that the

copy ultimately takes an electronic form instead of a physical one does not change the fact that a

“copy” of the original document was made. The reasoning in Taniguchi, which dealt with the

two conceptually similar but distinct concepts of “interpreting” and “translating,” is inapposite

here, where the plain meaning of “copy” would apply to both an electronic copy and a physical

copy. Ms. Herron herself demonstrates the difficulty in treating the two as different when she

states that the rules should not be expanded “to cover the costs of making TIFF copies.” Opp’n

at 5. The most natural formulation of what the TIFF file is, as Ms. Herron states, is a “copy” of

the original document. Ms. Herron’s argument that “making copies” should be understood to

mean “making photocopies” perhaps proves too much, since photocopying technology, as

opposed to other forms of duplication, was not widely commercially available when Congress

first passed § 1920(4) in 1948. See 62 Stat. 955. In any event, Ms. Herron has not met her

burden to show that Fannie Mae’s request is unreasonable.

               Ms. Herron further argues that the amount requested by Fannie Mae per copy,

$0.05, is unreasonable. In support, she points to Balance Point, which found that $0.02 was a

reasonable cost per page for TIFF conversion. 305 F.R.D. at 75. However, the Court cannot

conclude, on that fact alone, that $0.05 is an unreasonable cost in this litigation. Schedule C of

Fannie Mae’s Revised Bill of Costs shows that Fannie Mae’s third party vendor charged Fannie

Mae $0.05 per page. Ms. Herron does not contest the validity of that invoice, nor provide any

                                                 5
evidence to suggest the vendor’s charge was inappropriate. Different parties can receive

different prices from different vendors for any number of reasons, such as repeat or bulk

business. The Court therefore cannot conclude that Fannie Mae’s costs for copies were

unreasonably high.

                                         CONCLUSION

                   In light of the above, the Court finds that the costs requested by Fannie Mae in

its Refiled Bill of Costs are reasonable. Therefore, it is hereby

                ORDERED that costs in this matter are taxed in the amount of $42,779.55, plus

accrued interest in an amount no less than $376.56, for a total of $43,156.11.



Date: February 22, 2018                                              /s/
                                                      ROSEMARY M. COLLYER
                                                      United States District Judge




                                                 6
