Case No. 12-1776

IN THE

SUPREME COURT OF

THE UNITED STATES

Crane, Poole & Schmidt, LLC and Alan Shore,

Petitioners,

V.

Donnell, Young, Dole & Frutt, PC

Respondent,

On Writ of Certiorari for the

Thirteenth Judicial Circuit

BRIEF FOR RESPONDENT

Team 13

Counsel for Respondent

October 19, 2013

i

QUESTIONS PRESENTED

I. Whether Petitioners violated the Computer Fraud and Abuse Act (“CFAA”) when Alan

Shore, under Crane Poole’s directions, accessed Donnell Young’s protected computer

without authorization, or exceeding his authorization, with the intent to defraud and

obtained Donnell Young’s trade secrets.

II. Whether Federal Rule of Civil Procedure 54(d) authorizes an award of costs to the

prevailing party for the expense of creating exemplifications and copies of evidentiary

documents under the Taxation of Costs statute, 28 U.S.C. § 1920, when the materials

are provided in electronic form.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED……..…………………………………………………………………………………………………..i

TABLE OF AUTHORITIES………………………………………………………………………………………………………….iv

CONSTITUTIONAL AND STATUTORY PROVISIONS………………………………………………………………….1

STATEMENT OF THE CASE……………………………………………………………………………………………………….1

A. Statement of the Facts.....……………………………………………………………………………….1

B. Procedural History…………………………………………………………………………………………..3

SUMMARY OF THE ARGUMENT……………………………………………………………………………………………..3

ARGUMENT…………………………………………………………………………………………………………………………….5

I. PETITIONERS VIOLATED THE CFAA WHEN SHORE, UNDER CRANE POOLE’S DIRECTIONS, ACCESSED DONNELL YOUNG’S PROTECTED COMPUTER WITHOUT AUTHORIZATION, WITH AN INTENT TO DEFRAUD AND OBTAINED SOMETHING OF VALUE RESULTING IN LOSS OF OVER $5000 WITHIN ONE YEAR.………………………………………………………………………………………….5

A. Donnell Young has a civil action against Petitioners under the CFAA because Petitioners’ violation caused Donnell Young loss of over $5000 within one year.………………………………………………………………………..5 B. Petitioners violated the CFAA because shore knowingly accessed a protected computer without authorization, or exceeding it, and he had the intent to defraud. He also furthered his intended fraud and obtained Donnell Young’s trade secrets.……………………………………….……6 1. Shore accessed a protected computer as Donnell Young’s computer affected interstate commerce through its internet connection.……………………………………………………………………………….8 2. Shore did not have authorization to access the protected computer or he exceeded the authorization as granted.….…….9

i. Shore did not have authorization to access the information on the protected computer because it was terminated when he acquired adverse interests to those of Donnell Young’s………………………………………….10

iii

ii. Even if Shore had authorization, he exceeded it because he violated Donnell Young’s written policies…..14

3. Shore intended to defraud Donnell Young because he intended to give the trade secrets to Crane Poole.…………………16

4. Shore furthered his intended fraud and obtained Donnell Young’s trade secrets.………………………………………………..17

II. DONNELL YOUNG’S COSTS ARE TAXABLE TO CRANE, POOLE AND SHORE

UNDER THE PROVISIONS OF FEDERAL RULE OF CIVIL PROCEDURE 54(d)

BY WAY OF THE APPLICABLE CONTROLLING STATUTE, 28 U.S.C. § 1920……………………18

A. Illustrative exhibits and associated production aspects are covered

under a comprehensive understanding of “fees for exemplification.”…..……..18

B. A 21st century understanding of the word “copies” allows for digital

reproductions.………………………………………………………………………………………..……….23

C. Donnell Young’s involvement of third-party consultants was

necessary to ascertain the scope of damage and to successfully

prosecute their claim.…..………………………………………………………………………………….26

CONCLUSION…………………………………………………………………………………………………………………………..30

APPENDIX A

Computer Fraud and Abuse Act.…………………………………………………………………………..A-1

APPENDIX B

Federal Rule of Civil Procedure 54................………………………………………………………..B-1

APPENDIX C

28 U.S.C. § 1920……………………………………………………………………………………………………C-1

iv

TABLE OF AUTHORITIES

Page

United States Supreme Court Cases:

Alyeska Pipeline Serv. Co. v. Wilderness Soc’y,

421 U.S. 240 (1975)………………………………………………………………………………………………………18

Crawford Fitting Co., v. J. T. Gibbons, Inc.,

482 U.S. 437 (1987) ………………………………………………………………..……………………………………18

Taniguchi v. Kan Pac. Saipan, Ltd.,

132 S. Ct. 1997 (2012) ……………………………………………………………….…………………………………24

United States Court of Appeals Cases:

Arcadian Fertilizer, LP. v. MPW Indus. Servs., Inc.,

249 F.3d 1293 (11 Cir. 2001) ………………………………………………………………………..………………19

BDT Prods., Inc. v. Lexmark Int'l, Inc.,

405 F.3d 415 (6th Cir. 2005) ……………………………………………………………………..……………24,25

Burton v. Stevedoring Servs. Of America,

196 F.3d 1070 (9th Cir. 1999) ………………………………………………………………………………………10

Cefalu v. Vill. of Elk Grove,

211 F.3d 416 (7th Cir. 2000)……………………………………………………………………………….…passim

Country Vintner of N.C., LLC v. E. & J. Gallo Winery, Inc.,

718 F.3d 249 (4th Cir. 2013) ………………………………..…………………………………………….…passim

EEOC v. Kenosha Unified Sch. Dist. No. 1,

620 F.2d 1220 (7th Cir. 1980)………………………………………………….……………………………………19

EF Cultural Travel BV v. Explorica, Inc.,

274 F.3d 577 (1st Cir. 2001) …………………………………………………………………………………………14

Fogleman v. ARAMCO,

920 F.2d 278 (5th Cir. 1991)…………………………………………………………………………………………29

Hecker v. Deere & Co.,

556 F.3d 575 (7th Cir. 2009) …………………………..………………………………………………………27,29

v

Int’l Airport Ctrs., LLC v. Citrin,

440 F.3d 418 (7th Cir. 2006) …………………………………………………………………………………….6,10

Kohus v. Cosco, Inc.,

282 F.3d 1355 (Fed. Cir. 2002)………………………………..………………………………………………19,20

P.C. Yonkers, Inc. v. Celebrations the Party and Superstore, LLC.,

428 F.3d 504 (3d Cir. 2005) ……………………………………………….…………………………………..5,6,11

Race Tires America, Inc. v. Hoosier Racing Tire Corp.,

674 F.3d 158 (3rd Cir. 2012) …………………………………..…………………………………………….passim

Theofel v. Farey-Jones,

359 F.3d 1066 (9th Cir. 2003) ………………………………………………………………………………………..5

Triad Consultants, Inc. v. Wiggins,

249 Fed.Appx. 38 (10th Cir. 2007) …………………….…………………………………………………………17

United States v. Czubinski,

106 F.3d 1069 (1st Cir. 1997) …………………………….………………………………………………………7,17

United States v. John,

597 F.3d 263 (5th Cir. 2010) ……………………………..…………………………………………………………14

United States v. Nosal,

642 F.3d 781 (9th Cir. 2011) …………………………..…………………………………………………….passim

United States v. Rodriguez,

628 F.3d 1258 (11th Cir. 2010) …………………………….………………………………………………………14

United States v. Trotter,

478 F.3d 918 (8th Cir. 2007) ………………………………..……………………………………………………..…8

Watson v. Ray,

192 F.3d 1153 (8th Cir. 1999) ………………………………………………………………………………………11

WEC Carolina Energy Solutions, LLC v. Miller,

687 F.3d 199 (4th Cir. 2012) ………………………………..……………………………………………….passim

United States District Court Cases:

Brown v. The McGraw-Hill Cos., Inc.,

526 F. Supp. 2d 950 (N.D. Iowa 2007) ……………………………………………………….…………………24

vi

CBT Flint Partners, LLC. v. Return Path Inc.,

676 F. Supp. 2d 1376 (N.D. Ga. 2009)…………………………………………………………………27,28,29

DiBella v. Hopkins,

407 F. Supp. 2d 537 (S.D.N.Y. 2005)………………..……………………………………………………passim

eBay Inc. v. Digital Point Solutions, Inc.,

608 F. Supp. 2d 1156 (N.D. Cal. 2009) ……………………………….………………………………………..16

Eolas Techs., Inc. v. Adobe Sys., Inc.,

891 F. Supp. 2d 803 (E.D. Tex. 2012)…………………..………………………………………………..passim

Fells v. Va. Dept. of Transp.,

605 F. Supp. 2d 740 (E.D. Va. 2009)……………….…………………………………………………………….25

Goss Int. Corp. v. Tokyo Kikai Seisakusho, Ltd.,

No. Coo-35 LRR., 2004 WL 1234130 (N.D. Iowa 2004) ………………………………….…………….27

I.M.S. Inquiry Mgmt. Sys., LTD v. Berkshire Info. Sys., Inc.,

307 F. Supp. 2d 521 (S.D.N.Y. 2004) ………………………….………………………………………………….5

NCMIC Finance Corp. v. Artino,

638 F. Supp. 2d 1042 (S.D. Iowa 2009) …………………………………………………………………passim

Shurgard Storage Centers, Inc. v. Safeguard Self Storage, Inc.,

119 F. Supp. 2d 1121 (W.D. Wash. 2000) ……………….………………………………………………..8,16

Transamerica Life Ins. Co. v. Lincoln Nat. Life Ins. Co.,

590 F. Supp. 2d 1093 (N.D. Iowa 2008) ………………………………………………….……………….27,29

Statutory Provisions:

18 U.S.C. § 1030 (2008)………………………………………………………………………………………………….…passim

S.Rep. No. 104-357 (1996) …………………………………………………...………………………………………………8,12

28 U.S.C. § 1920 (2008) ……………………………………………..…………………………………………………….passim

Fed. R. Civ. P. 54(d) …………………………………………………………………………………………………………..passim

Legislative Materials:

H.R. Rep. 98-894, 1984 U.S.C.C.A.N. 3689, 3694 (July 24, 1984) …………………………..…………………11

vii

154 Cong. Rec. S9897-01 (daily ed. Sept. 27, 2008)………………………………………………………………….23

Secondary Authorities:

Black's Law Dictionary (9th ed. 2009) ………………………………………..……………………………………….19,22

Noah Webster, A Dictionary of the English Language, Abridged from the American Dictionary

142 (1850) ……………………………………..……………………………………………………………………………………….21

Jennifer M. Smith, Electronic Discovery and the Constitution: Inaccessible Justice, 6 J. Legal

Tech. Risk Mgmt. 138–39 (2012)……………………………………………………………………………………………..25

1

CONSTITUTIONAL AND STATUTORY PROVISIONS

Due to the length of the statutory provisions involved in this case, they are cited here as

18 U.S.C. § 1030 (2008), Fed. R. Civ. P. 54(d), and 28 U.S.C. § 1920 (2008). Pertinent provisions

are reproduced in the Appendix pursuant to Supreme Court Rule 24(1)(f).

STATEMENT OF THE CASE

A. Statement of the Facts

Alan Shore (“Shore”) was a partner in the Donnell, Young, Dole & Frutt, PC (“Donnell

Young”) law firm. R. at 6. In early 2010, Petitioners Crane, Poole & Schmidt, LLC (“Crane

Poole”) and Shore began negotiations for Shore to join Crane Poole as partner. R. at 6. Crane

Poole is Donnell Young’s competitor. R. at 11. Both firms specialize in antitrust and Racketeer

Influence and Corrupt Organizations (“RICO”) litigation. R. at 11. In a pretrial deposition, Shore

admitted to accessing and downloading trade secrets from Donnell Young’s system, under

Crane Poole’s direction. R. at 3, 11-12. He emailed the client lists, pending cases, billing

practices, and fee arrangements to Crane Poole’s partners. R. at 3, 11. On April 30, 2010,

Shore resigned from Donnell Young. R. at 3.

Shore joined Crane Poole directly thereafter. R. at 3-4. Three weeks later he used

Donnell Young’s trade secrets to make a presentation to a prospective Donnell Young client. R.

at 4. Donnell Young’s prospective client hired Crane Poole for two lucrative litigation matters.

R. at 4. Shore testified in a deposition that his actions were “contrary to firm policies and his

fiduciary duties.” R. at 5-6.

As a partner, Donnell Young provided Shore with a laptop and access to the firm’s

computer network and any document therein. R. at 3. To protect its confidential information

2

and trade secrets, Donnell Young had written policies forbidding the following : (1) any use of

firm information without authorization; (2) downloading the information on a personal

computer; and (3) barring the information’s use for any purpose other than firm use. R at 3.

Donnell Young kept confidential information in a file marked “Confidential.” R. at 3.

In the aftermath of Shore’s betrayal, Donnell Young incurred over one million dollars in

expenses to identify the files affected in the breach and to analyze the extent of potentially

leaked, privileged client information. R. at 6. The hired technical analysts pulled all emails,

memoranda, and documents potentially relating to the breach; imaged (copied) hard drives;

extracted metadata regarding the files; assisted in privilege screening and converted relevant

files containing privileged information to .tif or .pdf to preclude alteration; bates numbered all

documents (electronically); created a software program to search and organize affected data

for a comprehensive view; and stored copies of all relevant data separately in electronic form.

R. at 6.

In preparation for trial, Donnell Young also employed consultants to create technical

multimedia trial exhibits and presentations illustrating how Shore used Donnell Young’s

information in acquiring the potential clients. R. at 6-7. Prior to the trial judge’s grant of

summary judgment, Donnell Young had also incurred costs of $140,000 for copies of all

pertinent discoverable information created for and supplied to both parties. R. at 6.

In total, Donnell Young’s electronically stored information (ESI) costs amounted to

$3,000,000. R. at 6. Direct damages claimed were $2,500,000. R. at 6. The amount of

damages were not contested by defendants. R. at 6.

3

B. Procedural History

The United States District Court for the Eastern District of Evans granted Respondent’s

motion for summary judgment, holding that Petitioners Crane, Poole, & Schmidt, LLC, and Alan

Shore violated the Counterfeit Access Device and Computer Fraud and Abuse Act of 1984,

awarding $2,500,000 in damages and $3,000,000 for necessary costs incurred. R. 2, 8. The

United States Court of Appeals for the Thirteenth Judicial Circuit affirmed the District Court’s

grant of summary judgment for Respondent, but reversed the award of costs for Electronically

Stored Information, finding the items claimed as costs were not covered under Rule 54(d). R.

10, 14.

SUMMARY OF THE ARGUMENT

The Computer Fraud and Abuse Act (“CFAA”) was initially enacted in 1984 as a criminal

statute to address hackers accessing governmental and financial institution’s computers

without authorization. In 1994, the CFAA was amended to provide a civil action. In 1996, the

CFAA was amended again to broaden the scope of computers protected under the CFAA to

encompass any computer that affected interstate commerce. Legislative history shows

Congressional intent was to address all cybercrimes under the CFAA to avoid amending multiple

statutes as technology advanced and new cybercrimes arose. Currently, the CFAA allows

persons to have a civil cause of action if they suffered at least $5,000 in loss, within a year,

because of a violation.

Shore’s and Crane Poole’s actions meet the four elements which constitute a CFAA

violation. Donnell Young’s computer was affecting interstate commerce through its internet

connection, making it a protected computer, when Shore accessed it without

4

authorization. Shore was without authorization because he lost it when his agency relationship

with Donnell Young was severed due to his adverse interests. However, if this Court

determines he did not lose his authorization, then he exceeded it when he violated Donnell

Young’s written provisions. Shore had an intent to defraud Donnell Young because he intended

to provide its trade secrets to Crane Poole. Lastly, Shore acquired Donnell Young’s trade

secrets, which were valuable to him, as he was able to persuade Donnell Young’s potential

client to hire Crane Poole. Because Shore violated the CFAA under Crane Poole’s direction, they

are both liable.

In 1853, Congress enacted the Fee Act, which established national standards for taxing

litigation costs to non-prevailing parties. In 1948, the Fee Act was split into seven

subcategories, the first six becoming the Taxation of Costs statute. The fourth subcategory is a

provision for exemplifications and copies of necessary evidentiary materials. The terms

“exemplification” and “copy” have taken on varying connotations among the circuits in the

intervening years. Many courts embrace the innovations technology provides for these terms,

while others hold to simpler applications, many of which are dying out in modern practice. A

21st century exemplification is an illustration used to clarify complex evidence for presentation

to a jury. A copy is simply a duplicate of an original document, but when the originals contain

relevant metadata, electronic formats which preserve the data are proper. When the technical

nature of creating either exemplifications or copies calls for employing outside consultants to

assist in the process, recovery for those costs is allowed, as well.

5

ARGUMENT

I. PETITIONERS VIOLATED THE CFAA WHEN SHORE, UNDER CRANE POOLE’S DIRECTIONS, ACCESSED DONNELL YOUNG’S PROTECTED COMPUTER WITHOUT AUTHORIZATION, WITH AN INTENT TO DEFRAUD AND OBTAINED SOMETHING OF VALUE RESULTING LOSS OF OVER $5000 WITHIN ONE YEAR. A. Donnell Young has a civil action against Petitioners under the CFAA because Petitioners’ violation caused Donnell Young loss of over $5,000 within one year.

Donnell Young has a civil action against Petitioners because their violation of the CFAA

caused Donnell Young losses of over $5,000 within one year. The CFAA allows any person who

suffers loss because of a CFAA violation to bring a civil action against the violator to obtain

compensatory damages. P.C. Yonkers, Inc. v. Celebrations the Party & Seasonal Superstore,

LLC., 428 F.3d 504, 510-11 (3d Cir. 2005) (quoting 18 U.S.C. § 1030(g) (2008)). To maintain a

civil action, one of the five factors under 18 U.S.C. § 1030(4)(A)(i)(I)-(VI) must be met. Theofel

v. Farey-Jones, 359 F.3d 1066, 1078 (9th Cir. 2003) (citing § 1030 (a)(5)(B)).1 The relevant factor

requires that the violation caused one or more persons an aggregate “loss” of at least $5000

within a year. Id. (citing § 1030(4)(A)(i)(I)). “Loss” is any reasonable cost to any victim,

including the cost of responding to an offense, conducting a damage assessment. I.M.S. Inquiry

Mgmt. Sys., LTD v. Berkshire Info. Sys., Inc., 307 F. Supp. 2d 521, 525 (S.D.N.Y. 2004) (citing §

1030(e)(11)). This is a jurisdictional threshold, purposefully implemented to prevent a

floodgate of trivial cases in the courts. NCMIC Fin. Corp. v. Artino, 638 F. Supp. 2d 1042, 1063

(S.D. Iowa 2009).

1 (I) Loss to 1 or more persons aggregating to $5,000.00 or more during any 1-year period; (II) the modification or

impairment, or potential modifications or impairment, of the medical examination, diagnosis, treatment, or care of 1 or more individuals; (III) physical injury to any person; (IV) a threat to public health or safety; (V) damage affecting a computer used by or for an entity of the United States Government in furtherance of the administration of justice, national defense, or national security; or (VI) damage affecting 10 or more protected computers during any 1-year period.

6

Here, Donnell Young was forced to incur over $5,000 in damage assessment. Petitioners

have not contested the amount of damages. Therefore, Donnell Young meets the monetary

threshold under the CFAA and therefore has a valid civil claim.

B. Petitioners violated the CFAA because Shore knowingly accessed a protected computer without authorization, or exceeding it, and he had the intent to defraud. He also furthered his intended fraud and obtained Donnell Young’s trade secrets. Petitioners violated the CFAA because Shore, as Crane Poole’s agent, accessed a

protected computer without authorization, or in excess of his authorization, with the intent to

defraud and actually furthered his intended fraud while obtaining Donnell Young’s trade

secrets. The following four elements must be met by a preponderance of the evidence to prove

the CFAA was violated: (1) a person accessed a protected computer; (2) he did so without

authorization or by exceeding his granted authorization; (3) he accessed the protected

computer knowingly and with the intent to defraud; and (4) as a result, he furthered the

intended fraud and obtained something of value. P.C. Yonkers, Inc., 428 F.3d at 509. Because

Petitioners’ actions satisfy the four elements, their acts were a CFAA violation and this Court

should affirm.

A computer affects interstate commerce through its internet connection, making it a

protected computer. Authorization to access information is based on an agency relationship

between the employer and employee. Artino, 638 F. Supp. 2d at 1058. As such, when an agent

acquires adverse interests without the principal’s knowledge or the agent is otherwise guilty of

breaching his duty of loyalty, his authorization is automatically revoked. Int’l Airport Ctrs., LLC

v. Citrin, 440 F.3d 418, 421 (7th Cir. 2006). Whereas, an employee exceeds his authorized

access when the employer grants the employee authorization, sets forth written regulations

7

limiting it, and the employee violates them. United States v. Nosal, 642 F.3d 781, 787 (9th Cir.

2011).

An employee has the intent to defraud his employer when he obtains some financial

gain for himself or for another, to the employer’s detriment by dishonest methods or schemes.

An employer has to prove that the information obtained through the unauthorized access was

of value to the employee in light of the fraudulent scheme. United States v. Czubinski, 106 F.3d

1069, 1078 (1st Cir. 1997). Therefore, an employee violates the CFAA when he accesses an

employer’s protected computer after his agency relationship is severed and he is stripped of his

authorization, or he exceeds his authorized access by violating the employer’s regulations, and

he obtains some financial gain for himself or another, and he obtains something of value in light

of a fraudulent scheme.

Donnell Young’s computer was a “protected computer” because it was connected to the

internet and was affecting interstate commerce. Shore was “without authorization” when he

accessed Donnell Young’s protected computer because he breached his duty when he gained

adverse interests, without Donnell Young’s knowledge. However, if this Court were to find

Shore had authorization then he exceeded it.

Shore had the required intent to defraud Donnell Young when he accessed the

protected computer without authorization, or in excess of his granted authorization. Shore

received financial gain for himself, and Crane Poole, to Donnell Young’s detriment when he was

able to persuade Donnell Young’s potential client to hire Crane Poole instead. Lastly, Shore

obtained something of value when he obtained Donnell Young’s trade secrets. As such, Shore

8

violated the CFAA because he satisfied the four elements. Crane Poole also violated the CFAA

because it directed Shore to commit the violation, effectively making Shore its agent.

1. Shore accessed a protected computer as Donnell Young’s computer affected interstate commerce through its internet connection.

Shore accessed a “protected computer” because Donnell Young’s computer was

affecting interstate commerce through its internet connection. The CFAA defines a “computer”

as an electronic device used for processing or storing data. § 1030(e)(1). A “protected

computer” is a computer that is used in, or affects, interstate commerce. United States v.

Trotter, 478 F.3d 918, 920 (citing § 1030(e)(2)(B)). The Constitution grants Congress the power

to regulate interstate commerce through the Commerce Clause. United States v. Lopez, 514

U.S. 549, 557 (1995). Power under the Commerce Clause includes the ability to regulate

channels of interstate commerce. Id. at 558-59. As both the means to engage in commerce

and the method by which transactions occur, the internet is an instrumentality and channel of

interstate commerce. Trotter, 478 F.3d at 921. The internet is “inevitably intertwined” with

interstate commerce. Id.

Additionally, legislative history supports the broad definition of “protected computer”.

Artino, 638 F. Supp. 2d at 1059. In the 1996 CFAA amendment, Congress replaced the phrase

“federal interest computer” with “protected computer.” S. Rep. No. 104-357, at 7-8 (1996).

This change reflects Congressional intent to broaden the scope of computers protected under

the CFAA. Artino, 638 F. Supp. 2d at 1059 (citing Shurgard Storage Ctrs., Inc. v. Safeguard Self

Storage, Inc., 119 F. Supp. 2d 1121, 1129 (W.D. Wash. 2000)).

In Trotter, the court found the Salvation Army’s computers did affect interstate

commerce through their internet connection. Trotter, 478 F.3d at 921. The petitioner pleaded

9

guilty to a CFAA violation after he deleted files from the Salvation Army’s network. Id. at 919-

20. On appeal, the petitioner challenged the CFAA’s constitutionality as applied to him because

nearly all computers are used in interstate commerce in some way through the internet or

private networks. Id. at 921. He argued the CFAA could not be so broad. Id. As a method for

people to engage in commerce and conduct transactions, the internet is an instrumentality and

“a channel of interstate commerce.” Id. (citing United States v. MacEwan, 445 F.3d 237, 245

(3d Cir. 2006). The court also found once a computer is used in interstate commerce, Congress

has the power to protect it. Id. at 922.

Here, Donnell Young’s computer was connected to the Internet when Shore accessed

the information. Whether the information itself affected interstate commerce is immaterial

because once the computer accessed the internet, it affected interstate commerce, and

became a protected computer. Additionally, Donnell Young specializes in RICO and antitrust

litigation. Both areas of law pertain to economic activities and are practiced at the federal level

and the outcome of the cases affects other jurisdictions. As such, Donnell Young’s computers

were used in and affected interstate commerce so they meet the “protected computer”

element.

2. Shore did not have authorization to access the protected computer or he exceeded the authorization as granted.

Shore did not have authorization to access Donnell Young’s trade secrets because he

breached his duty of loyalty by acquiring adverse interests. Assuming arguendo, Shore did not

lose his authorization, he exceeded it when he violated Donnell Young’s written policies. The

CFAA does not define “authorization;” however, courts have defined it as “permission or power

granted by an authority.” LVRC Holdings, LLC v. Brekka, 581 F.3d 1127, 1133 (9th Cir. 2009);

10

Artino, 638 F. Supp. 2d at 1056. The rule of lenity requires courts to limit the reach of criminal

statutes to the clear import of their text and construe any ambiguity against the government.

Brekka, 581 F.3d at 1135.

i. Shore did not have authorization to access the information on the protected computer because it was terminated when he acquired adverse interests to those of Donnell Young’s.

Shore did not have authorization to access the information on Donnell Young’s

protected computer because his authorization was automatically revoked when he acquired

adverse interests to those of Donnell Young’s. Although Congress has not defined “without

authorization” in the CFAA, courts have developed and relied upon two approaches to interpret

this statutory language: the agency approach and the code-based approach. Orin S. Kerr,

Cybercrime’s Scope: Interpreting “Access” and “Authorization” in Computer Misuse Statutes, 78

N.Y.U. L. Rev. 1596, 1633, 1644-45 (2003). In interpreting a statute, the court must examine its

language. Burton v. Stevedoring Servs. of Am., 196 F.3d 1070, 1072 (9th Cir. 1999). If the

statute is clear and unambiguous, there is no need to look beyond the statute’s plain meaning

unless it would lead to an absurd result. Id.

Courts have recognized that authorized access typically arises only out of a contractual

or agency relationship. Artino, 638 F. Supp. 2d at 1058. The agency approach provides that the

employee’s authorization to access the information is based on the agency relationship

between the employee and the employer. Citrin, 440 F.3d at 420-21. Unless otherwise agreed,

an agent’s authority is terminated if—without the principal’s knowledge—he acquires adverse

interests or is otherwise guilty of a serious breach of loyalty to the principal. Id. at 421. Once

11

an employee gains adverse interests, he has violated his duty of loyalty terminating his agency

relationship, and his authorization to access the information. Id. at 420-21.

The code-based approach is much narrower than the agency relationship approach. The

code-based approach provides that an employee has authorization when his employer

approves his admission to that computer. WEC Carolina Energy Solutions, LLC v. Miller, 687

F.3d 199, 204 (4th Cir. 2012). “Without authorization” is when the employee gains admission

without approval. Id. Although the instant case arises out of a civil context, the CFAA is mainly

a criminal statute and any interpretation provided by this Court applies to both civil and

criminal contexts. Brekka, 581 F.3d at 1134 (citing Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004)).

The courts which have adopted the code-based approach rely on the rule of lenity. Id.; Miller,

687 F.3d at 204.

The court’s objective in interpreting a federal statute is to give effect to Congressional

intent. Watson v. Ray, 192 F.3d 1153, 1155-56 (8th Cir. 1999). Legislative history supports the

agency interpretation as the scope of the CFAA’s reach has been expanded over the last two

decades and will continue to expand as Congress updates the CFAA to keep up with technology

and new cyber crimes. P.C. Yonkers, Inc., 428 F.3d at 510. When Congress enacted the CFAA in

1984, it was to target hackers who accessed computers to steal information. Brekka, 581 F.3d

at 1130 (citing to H.R. Rep. 98-894, 1984 U.S.C.C.A.N. 3689, 3694 (July 24, 1984). In 1994,

Congress amended the CFAA with the intent to expand the CFAA’s scope to include civil claims

challenging the unauthorized removal of information from a company’s computer database.

Artino, 638 F. Supp. 2d at 1058. The CFAA addresses, in a single statute, the problem of

computer crime rather than identifying and amending every potential applicable statute

12

affected by advances in computer technology. S.Rep. No. 104-357, at 5 (1996). Therefore,

legislative history supports the agency approach over the code-based approach.

A court found an employee was “without authorization” when he accessed his

employer’s information because he lost his authorization when he breached his duty of loyalty.

Artino, 638 F. Supp. 2d at 1061. In Artino, an employee accessed his employer’s, NCMIC,

computer and emailed proprietary information containing potential clients’ information to his

personal account. Id. The employee acquired adverse interests when he decided to compete

against NCMIC and then emailed the proprietary information to his personal account. Id. As

such, the court found, the employee breached his duty of loyalty when he acquired adverse

interests and automatically lost his authority because it was based on the agency relationship

he severed. Id.

In adopting the code-based approach, the Ninth Circuit found an employee was not

“without authorization” because the employer granted him authorization by providing him with

a log-in and password. Brekka, 581 F.3d at 1135. In Brekka, an employee emailed his

employer’s, LVRC, information to his personal account. Id. at 1129. There was no written

employment agreement or guideline prohibiting the employees from emailing LVRC’s

documents to personal computers. Id. The court reasoned that based on the definition of

“authority,” the plain language of the statute indicated that authorization depends on actions

taken by the employer. Id. at 1135. If the employer did not rescind the employee’s

authorization, the employee would have no reason to know that making personal use of the

company computer, in breach of a fiduciary duty, would constitute a criminal violation. Id. The

rule of lenity would make it improper for a criminal statute to be interpreted in such an

13

unexpected manner. Id. The court found, as the employee’s authorization was not revoked he

did not violate the CFAA. Id.

Shore violated his duty of loyalty when he gained adverse interests to those of Donnell

Young’s and failed to reveal those interests to Donnell Young. Like the employee in Artino,

Shore gained adverse interests when he agreed to be Crane Poole’s agent emailed Donnell

Young’s trade secrets to his personal email account. Shore ceased to be Donnell Young’s agent

when he violated the duty of loyalty he owed Donnell Young. Once Shore ceased being Donnell

Young’s agent, he was automatically stripped of his authorization to access the information.

The termination of an agency relationship makes the accessing of computer files transform into

unauthorized access under the CFAA. Therefore, Shore was “without authorization” when he

accessed Donnell Young’s protected computer.

Unlike the employee in Brekka, Shore did have written regulations that delineated what

he was forbidden from doing. The Brekka court was concerned about employees not having a

reason to know that by using company computers for personal use they would be breaching a

fiduciary duty and violating a criminal statute. However, employees know when they are

stealing trade secrets from their employers to provide them to the competition they are doing

something inherently wrong. Here, Shore did have a reason to know he was breaching his

fiduciary duty when he accessed Donnell Young’s trade secrets to provide them to Crane Poole.

Additionally, the intent to defraud element protects the innocent employees which the Brekka

court was concerned with. Thus, Shore did not have authorization when he accessed Donnell

Young’s protected computer as he was stripped of it when he breached his duty of loyalty.

ii. Even if Shore had authorization, he exceeded it because he violated Donnell Young’s written policies.

14

Even if this Court finds that Shore had authorization, his conduct still satisfies the

authorization element because, he exceeded his authorization when he violated Donnell

Young’s written policies. Under the CFAA, to “exceed authorized access” means to access a

computer with authorization but utilizing access to obtain or alter information the accessor was

not authorized to obtain or alter. § 1030(e)(6). Courts have adopted an intended-use analysis

which provides that an employee exceeds his authorized access when he violates policies set

forth by the grantor. EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577, 582 (1st Cir. 2001);

United States v. John, 597 F.3d 263, 271 (5th Cir. 2010); United States v. Rodriguez, 628 F.3d

1258, 1263 (11th Cir. 2010); United States v. Nosal, 642 F.3d 781, 788 (9th Cir. 2011).

Using the intended-use analysis, the Ninth Circuit adopted a narrow interpretation of

“without authorization”. Id. In Nosal, employees agreed to help Mr. Nosal, a former employee,

start a business that would compete with Korn/Ferry, the employer. Id. at 783. The employees

then transferred Korn/Ferry’s trade secrets to Nosal. Id. Korn/Ferry had taken measures to

maintain the confidentiality of its information. Id. The court found that based on its reasoning

for adopting the code-based approach –that the employer’s behavior is what determines

whether an employee has authorization or not– “the only logical interpretation of ‘exceeds

authorized access’” was that the employer limited the employee’s authorization, the employee

was aware of the limitation, and the employee exceeded the limitations. Id. at 787.

The Fourth Circuit rejected the intended-use analysis finding that the analysis leaves

innocent employees, who have no intent to defraud their employers, open to criminal

prosecution and civil liability. Miller, 687 F.3d at 206. The employee in Miller left his employer

to work for the competitor. Id. at 199. Before he resigned, he downloaded WEC’s proprietary

15

information and emailed it to himself, under the competitor’s direction. Id. at 202. WEC had

provided the employee with a laptop and authorization to access the company’s intranet and

servers. Id. However, WEC had policies in place to protect its confidential information wherein

downloading and using the information without authorization was prohibited. Id. The

employee then used WEC’s information to make a presentation to WEC’s potential client and

persuaded him to hire the competitor instead. Id.

The court found that based on the rule of lenity and the definition of “authorization,” it

could not interpret “exceed authorization” to include when an employee violates an employer’s

policy. Id. at 204. To adopt the intended-use analysis would open innocent employee to

criminal prosecution. Id. at 206. For example, if an employer has a written policy forbidding

downloading company information onto a personal computer, and the employee did so with

the intention to continue working from home. Id. Under the Nosal approach, the employee

would have acquired the information in a manner not authorized and would be liable under the

CFAA. Id. The court rejected the intended-use analysis and found an employee only exceeds

his authorization when he obtains or alters information on a computer beyond that which he

was authorized to access. Id.

Here, the facts are similar to the Miller case. Like WEC, Donnell Young had policies set

in place prohibiting the downloading and using of information. Shore was aware of the policies

and, under Crane Poole’s direction, violated those policies. In its analysis, the Fourth Circuit

disregarded two out of the four factors provided under the CFAA and the monetary threshold.

In the hypothetical provided in Miller, the employee would not be open to liability under the

CFAA because he lacked the intent to defraud the employer. Also, he neither obtained

16

something of value nor did he cause $5000 or more in loss. Under the intended-use analysis,

innocent employees are not open to liability under the CFAA because they would not meet all

of the elements. However, Shore does meet all of the elements and his, and Crane Poole’s,

actions fall under the very behavior Congress wanted to address under the CFAA. Therefore,

Shore exceeded his authorization and his acts satisfy the authorization element.

3. Shore intended to defraud Donnell Young because he intended to give the trade secrets to Crane Poole.

Under the CFAA, there is no need to plead the elements of common law fraud to state a

claim; a showing of unlawful access is enough. eBay Inc. v. Digital Point Solutions, Inc., 608 F.

Supp. 2d 1156, 1164 (N.D. Cal. 2009). Under the CFAA, “defraud,” means wronging someone’s

property rights by dishonest methods or schemes. Shurgard Storage, 119 F. Supp. 2d at 1125.

A person acts with intent to defraud when he deceives someone to either cause some financial

loss to another or to obtain some financial gain for himself or another, to a third party’s

detriment. Artino, 638 F. Supp. 2d at 1062 (holding employee’s “unlawful competition” with

NCMIC satisfied the “intent to defraud” element when employee accessed NCMIC’s customer

spreadsheet, emailed it from his work email account to his personal account without

authorization, and used the customer spreadsheet for his own personal gain and against

NCMIC’s financial interest).

Analogous to the employee in Artino, Shore had the requisite intent to defraud because

he violated Donnell Young’s property rights when he accessed the trade secrets and

confidential information, emailed it to his personal account, and used the information for his

own personal gain and against Donnell Young’s financial interest. The acquiring of the potential

17

client’s cases constituted a financial gain, which was to Donnell Young’s detriment. Therefore,

Shore had the requisite intent to defraud.

4. Shore furthered his intended fraud and obtained Donnell Young’s trade secrets.

Shore furthered his intended fraud and obtained “something of value” when he

obtained Donnell Young’s trade secrets with the intent to provide them to Crane Poole. The

value of such information is relative to one’s needs and objectives. United States v. Czubinski,

106 F.3d 1069, 1078 (1st Cir. 1997). The [employer] must show the information was valuable to

the [employee] in light of a fraudulent scheme. Id. The plaintiff must prove either that the

information was used to unfairly compete or given to a competitor. Id. at 1063 (citing Triad

Consultants, Inc. v. Wiggins, 249 Fed. Appx. 38, 41 (10th Cir. 2007)).

A court found the government failed to prove an employee “obtained something of

value” because it failed to prove the employee anything in light of a fraudulent scheme. Id. at

1078. In Czubinski, an Internal Revenue Service (“IRS”) employee used his password to access

his friends’, family’s, and a political rival’s tax information. Id. at 1072. However, the court

found the [employee] simply wanted to satisfy his own curiosity. Id. The government failed to

prove he disseminated the confidential information to third parties. Id. at 1075. Merely

viewing information cannot be deemed the same as obtaining “something of value.” Id.

Here, Shore did obtain something of value in light of a fraudulent scheme. The

fraudulent scheme was to provide the trade secrets and confidential information to Donnell

Young’s competitor, so both he and the competitor could enjoy the financial gains. Unlike the

employee in Czubinski, Shore did not merely view Donnell Young’s trade secrets and

confidential information but used and disclosed the information to a competitor. With the

18

information Shore was able to create a presentation that swayed Donnell Young’s prior client,

who had previously used Donnell Young, to hire Crane Poole. Thus, Shore did obtain something

of value when he accessed the information without authorization. Therefore, Shore’s, and

Crane Poole’s, acts constituted a violation of the CFAA as their acts meet the four elements.

II. DONNELL YOUNG’S COSTS ARE TAXABLE TO CRANE, POOLE AND SHORE UNDER THE PROVISIONS OF FEDERAL RULE OF CIVIL PROCEDURE 54(d) BY WAY OF THE APPLICABLE CONTROLLING STATUTE, 28 U.S.C. § 1920.

Federal Rule of Civil Procedure 54(d) states that “unless a federal statute, these rules, or

a court order provides otherwise, costs . . . should be allowed to the prevailing party.” In the

absence of a controlling statute, courts may to shift litigation costs to the losing party as equity

requires. Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 258 (1975). However,

when a controlling statute exists, courts must award costs in accordance with its parameters.

Id. This Court has clarified that 28 U.S.C. sec. 1920 is the controlling statute for federal civil

cases. Crawford Fitting Co., v. J. T. Gibbons, Inc., 482 U.S. 437, 441 (1987). Trial courts may

refuse to award costs falling under the guidelines of section 1920, but that to award costs not

listed therein was an abuse of discretion. Id. Section 1920(4) allows for “fees for

exemplification, and the costs of making copies of any materials where the copies are

necessarily obtained for use in the case.” 28 U.S.C. § 1920(4). This Court should award Donnell

Young’s costs in full because all fall under the modern definitions of either exemplifications or

copies, and all were necessary for the successful prosecution of the CFAA claim.

A. Illustrative Exhibits and Associated Production Aspects are Covered Under a Comprehensive Understanding of “Fees for Exemplification.”

Donnell Young’s multimedia presentation and the consultant work required to produce

it are covered under the functional interpretation of the phrase “fees for exemplification.” An

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exemplification is an illustration tending to clarify complex evidence for presentation to a jury.

Because the creation of detailed multimedia presentations tends to require a certain level of

technical expertise, it is appropriate to shift the associated consultant fees for producing them

to the losing party. In order to properly illustrate Donnell Young’s comprehensive pricing

structure—and how it was misappropriated by Crane Poole and Alan Shore—Respondents had

to employ the use of Information Technology (IT) consultants. These consultants were

necessary not only to display the data as evidence, but even to initially locate and process it

into a usable form. Without this crucial step, prosecution of the claim would have been

impossible. As such, this Court should award Donnell Young’s fees spent for exemplifications.

Black’s Law Dictionary defines an exemplification as “[a]n official transcript of a public

record, authenticated as a true copy for use as evidence.” Black's Law Dictionary (9th ed.

2009). This definition has been widely used by courts for years, and some even accept it as

exhaustive. E.g. Race Tires America, Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158, 166 (3rd Cir.

2012); Kohus v. Cosco, Inc., 282 F.3d 1355, 1359 (Fed. Cir. 2002); Arcadian Fertilizer, LP. v. MPW

Indus. Servs., Inc., 249 F.3d 1293, 1297 (11th Cir. 2001).

Other courts have incrementally expanded the parameters of the term to keep pace

with technological advancements. See e.g., DiBella v. Hopkins, 407 F. Supp. 2d 537, 540

(S.D.N.Y. 2005). The Seventh Circuit has long understood exemplification as encompassing

“motion pictures, photostats, and kindred materials.” See EEOC v. Kenosha Unified Sch. Dist.

No. 1, 620 F.2d 1220, 1227 (7th Cir. 1980). Presently, the term means “‘signif[ying] the act of

illustration by example’, a connotation ‘broad enough to include a wide variety of exhibits and

demonstrative aids.’” Cefalu v. Vill. of Elk Grove, 211 F.3d 416, 427–29 (7th Cir. 2000).

20

In particularly complicated cases requiring expansive data presentations, the lower

courts have gone so far as to award consultant costs for the creation of database programs—

completely independent of the final product—designed to sort and maintain critical

information. E.g., DiBella, 407 F. Supp. 2d at 540.

Some restraint is, of course, appropriate in the extension of the broader definition. E.g.,

Eolas Techs., Inc. v. Adobe Systems, Inc., 891 F. Supp. 2d 803, 808 (E.D. Tex. 2012). A trial judge

retains the discretion to withhold award amounts based on equity. Cefalu, 211 F. at 428. Some

flatly deny judicial expansion of the definition to cover the costs of creating presentations for

the jury’s benefit, citing Congress’ failure to use the terms “demonstrative evidence” in the

wording of section 1920. See e.g., Kohus, 282 F.3d at 1361.

In Cefalu, a group of police officers were sued for violating an arrestee’s civil rights.

Cefalu, 211 F.3d at 427–29. In preparation for trial, an extensive multimedia presentation was

commissioned by the defense to portray the officers’ version of events. Id. at 427. The judge

granted summary judgment for the officers—causing the presentation to never be used. Id.

The court remanded the case on appeal to award the fees the defense had spent on

consultants for producing the presentation, noting that the fees were proper “so long as the

means of presentation furthers the illustrative purpose of an exhibit.” Id. at 429. The appellate

bench analogized the situation, stating that it would be silly to award a cost for creating an

overhead projector transparency, but then not allow for the cost of renting a projector with

which to show it. Id. at 428. To draw such a line was, in the words of the court, “nonsensical,”

as “each is key to the illustrative function of the exhibit.” Id. (emphasis added).

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In DiBella, the court reasoned that the evolving expectations of modern juries compel

contemporary litigants to raise the bar on courtroom presentations. DiBella, 407 F. Supp. 2d at

540. As such, reasonable costs for any production aspect of computer displays that “aid in the

efficient and effective presentation of evidence,” should be awarded. Id. The court awarded

costs for every stage of creating the exhibit: “design and production of demonstrative

presentations for trial, scanning of exhibits, computer operation, creation of exhibit database,

digitizing of audio and visual recordings, and set-up and break-down of technology used during

trial.” Id. at 541.

In Eolas, the court recognized that services of IT personnel at trial “expedited the

presentation of complex material to jurors,” and awarded those costs to Adobe for

exemplifications. Eolas, 891 F. Supp. 2d at 807. However, the trial judge only awarded $32,000

out of a requested $95,000 because he felt that a consultant team billing for approximately 100

hours a day for four days was excessive for trial exhibit purposes. Id.

Furthermore, section 1920 is a modern version of the 1853 Fee Act. Country Vintner of

N.C., LLC v. E. & J. Gallo Winery, Inc., 718 F.3d 249, 258-59 (4th Cir. 2013) (explaining the three

prior congressional iterations of 28 U.S.C. sec. 1920). At the time of its first appearance in

1853, the term exemplification meant “[a] copy, a transcript, an illustration by example; [a]

draught for a record.” Id. at 261 (quoting Noah Webster, A Dictionary of the English Language,

Abridged from the American Dictionary 142 (1850) (emphasis added)). It is likely that the

eventual exclusion of the illustrative understanding of the word in some jurisdictions is more a

result of the limitations of the courtrooms’ technological resources than the word, itself.

Litigants in the 19th century were incapable of creating the sophisticated exhibits that modern

22

technology allows; even a simple photographic enlargement would have been impossible. With

the banality of evidence coming either in the form of testimony, relevant objects, contractual

documents, and official copies of public records, judges likely simply grew accustomed to that

type of exemplification.

Thus, any reliance on the standard Black’s Law Dictionary definition of the word

“exemplification” is not only outmoded, but misplaced. Black’s Law Dictionary, though useful,

follows the courts’ lead, not vice versa. If this Court accepts the illustrative definition of

exemplification, the editors of Black’s Law Dictionary will readily publish it as such. In light of

the historical analysis put forth in Country Vintner, it is appropriate to recognize that the term

“exemplification” is not really expanding into new definitional territory so much as the old

definition is coming back into vogue on the heels of more capable technology.

Donnell Young, in anticipation of having to explain to jurors the comprehensive pricing

structure used in Alan Shore’s presentation, worked in conjunction with an IT consultant to

produce exhibits and multimedia presentations for use at trial. Like the DiBella court’s

expansive evidentiary presentations, which led to the authorization of consultant fees for, inter

alia, database and presentation programming, Donnell Young’s consultant fees for data

management programs and multimedia presentations should be awarded because each aided

in the efficient and effective presentation of evidence. Whether analogizing to Cefalu’s

professionally rendered trial presentations or to Eolas’s employment of numerous IT and

audio/video professionals, Donnell Young’s efforts and resultant product falls within the

trending statutory interpretation of “fees for exemplification.” As such, this Court should

award those costs under section 1920(4).

23

B. A 21st Century Understanding of the Word “Copies” Allows for Digital

Reproductions.

Donnell Young’s hard drive imaging, file format conversion, electronic data storage

methods, and all ESI copied and supplied for discovery falls under the working definition of

“copies” because each is merely a duplication of original evidentiary documents made in

preparation for the case. Today’s “copy” is an imitation or reproduction of an original work, in

either paper or digital form. Considering that digital documents contain so much information

likely to be pertinent to litigants—particularly in highly technical cases—when a document’s

original form is electronic, a paper copy is almost certainly insufficient. E.g., Country Vintner,

718 F.3d at 258-59. Donnell Young’s claim required not only a look at the accessed documents

themselves, but also an analysis of any associated metadata. This “data about the data” was

vital to determining the nature of Mr. Shore’s incursion on Donnell Young’s servers. Thus, this

Court should award Donnell Young their costs incurred for copying all documents and data

under section 1920(4).

The term “copies” has constantly evolved since first appearing in the 1853 Fee Act. Two

amendments were made to section 1920 in 2008. 154 Cong. Rec. S9897-01 (daily ed. Sept. 27,

2008) (statement of Sen. Landrieu). The first change applied to subsection (2), allowing costs

“for printed or electronically recorded transcripts.” Id. The second changed “copies of papers”

to “the costs of making copies of any materials . . . “ Id. (emphasis added). Both changes

validate modern, computer-driven legal methods. In making the changes, the legislators said,

“With [the] passage of this bill, the Senate has taken an important step to ensure that the

24

Federal judiciary has the tools to keep up with the changes and challenges of the 21st century.”

Id.

Congress was merely codifying the already apparent movement of the courts. The Sixth

Circuit held that “electronic scanning and imaging could be interpreted as ‘exemplification and

copies of papers.’” BDT Products, Inc. v. Lexmark Int'l, Inc., 405 F.3d 415, 420 (6th Cir. 2005)

(abrogated on other grounds by Taniguchi v. Kan Pac. Saipan, Ltd., 132 S. Ct. 1997, 2002

(2012)); See also Brown v. The McGraw-Hill Cos., Inc., 526 F. Supp. 2d 950, 959 (N.D. Iowa 2007)

(finding that the electronic scanning of documents is the modern-day equivalent of copies).

Even circuit courts that pull in the reins on broadening the term “exemplification” readily

extend the definition of “copies” to include digital formats. E.g., Race Tires, 674 F.3d at 166,

169.

Some courts do draw monetary lines regarding format. See Eolas, 891 F. Supp. 2d at

807. Although .pdf and .tif file formats are more functional—allowing for metadata notes and

redacting—they are also more costly to produce. Id. In light of this cost disparity, a court may

consider higher formats excessive unless a need for such document types has been established

by the parties. Id. at 807.

In evidentiary documents initially created in electronic form, the relevance of

accompanying metadata cannot be overlooked. See Country Vintner, 718 F.3d at 258-59.

Some metadata, only concerns formatting—fonts, margins, etc. Id. But oftentimes metadata

provides germane information a paper document could never illustrate. See Id. Information

such as when a document was first created or last accessed, any revisions made, any attempts

at backdating the document, and which users have made what changes, can all be found in the

25

metadata. Id. Metadata concerns are particularly important in a legal context: “The hidden

text may reflect editorial comments, strategy considerations, legal issues raised by the client or

the lawyer, or legal advice provided by the lawyer.” Jennifer M. Smith, Electronic Discovery and

the Constitution: Inaccessible Justice, 6 J. Legal Tech. Risk Mgmt. 138–39 (2012).

In Eolas, both parties agreed to supply electronic copies of documents for discovery.

891 F. Supp. 2d at 806. Adobe Systems converted all evidentiary documents into PDFs

(Portable Document Format) and TIFFs (Tagged Image File Format). Id. at 807. TIFF is a variant

of a PDF file, allowing for a sort of irreversible digital redacting—clearly useful in protecting

privileged information provided to opposing parties in digital form. Id. Lauding the utility of

TIFFs in a legal context, the court awarded only the costs of scanning the original documents

into the native scanner format because the paper originals never contained metadata. Id.

In Race Tires, the trial judge issued a Case Management Order (CMO) directing the

parties to come to an agreement regarding a wide array of ESI related functions: methods of

delivery, file formats, key search terms (to ensure that a good faith discovery effort was made

in searching scanned documents for relevancy), that each document would be provided in a

searchable format and pre-Bates numbered, and even that specific metadata fields would be

included with each document when applicable. Race Tires, 674 F.3d at 162. The court of

appeals therefore saw no need to restrict the post-litigation award due to costly format

selections. Id. at 172. Furthermore, the court did not share the Eolas court’s distaste for more

costly TIFF copies. Id. at 167. The full value was awarded. Id. at 168; Fells v. Virginia Dept of

Transp., 605 F. Supp. 2d 740 (E.D. Va. 2009).

26

In the instant case, Donnell Young’s taxation of costs lists $140,000 worth of ESI

documents copied for both parties in compliance with discovery, similar to Race Tires. As

simple digital copies, these costs are covered under the definition adopted by BDT Products.

Also, Donnell Young’s hard drive imaging, metadata extraction, electronic data storage, and

bates numbering all fall under necessary components of creating these digital copies in

accordance with Country Vintner. Unlike Eolas, these documents originally existed in electronic

form (not paper copies), making metadata pertinent. Because Alan Shore’s access methods and

times could only be specified through the attendant metadata—as explained in Smith’s

Electronic Discovery and the Constitution—and Donnell Young’s privileged client information

had to be protected, as in Country Vintner, the use of higher digital file formats was required.

These copies of evidentiary materials were made in preparation of the case, and should be

awarded to Donnell Young as the prevailing party under 28 U.S.C. § 1920(4).

C. Donnell Young’s Involvement of Third-Party Consultants was Necessary to Ascertain the Scope of Damage and to Successfully Prosecute Their Claim.

Due to the vast amounts of highly technical data at issue in this case, it was necessary

for Donnell Young to hire outside consultants to sift through the electronically stored

information embedded in their servers. Costs are necessary when they are incurred in good

faith to respond to inquiries, discovery requests, or for use in prosecuting a claim.

Extravagances or unilateral steps taken merely for convenience are generally not honored as

taxable costs. The trial-level judge, being most familiar with the parameters of the case, is in

the best position to weigh considerations of necessity. Though the wording of the statute

appears to apply the necessity prong only to copies, courts generally consider necessity in

27

regard to both copies and exemplifications. Because Donnell Young’s efforts were each vital to

determining the damage suffered and to build a case against Petitioners, the trial judge found

no extravagance. Therefore, this Court should shift the related fees for those consultant

services to Crane Pool under section 1920(4).

Discovery compels compliance, often directing parties to take on additional costs in

response to requests from opposing counsel. See Country, 718 F.3d at 258. Federal Rules of

Civil Procedure 26 and 28 establish that when the cost of responding to discovery requests is

excessive, a district court may exercise discretion to shift those costs to the other party. Id. at

261. Thus, one aspect of necessity may arise from a need to comply with procedural directives.

See Hecker v. Deere & Co., 556 F.3d 575, 591 (7th Cir. 2009) (recognizing costs for converting

computer data into a readable format in response to plaintiffs’ discovery requests).

Sometimes the sheer volume of data that must be simplified for a jury’s consideration

will serve as the impetus for finding a courtroom presentation necessary. Transamerica Life Ins.

Co. v. Lincoln Nat. Life Ins. Co., 590 F. Supp. 2d 1093 (N.D. Iowa 2008); CBT Flint Partners, LLC. v.

Return Path Inc., 676 F. Supp. 2d 1376 (N.D. Ga. 2009). The court in Transamerica, supra, noted

the wisdom of awarding fees for outside consultant work “given the complexity of the issues

presented at trial and the enormous amounts of information presented to the jury during trial."

Transamerica, 590 F. Supp. 2d 1103 (quoting Goss Int’l Corp. v. Tokyo Kikai Seisakusho, Ltd.,

(N.D. Iowa 2004)) (emphasis added). The court drew no distinction between the necessary

visual presentation of complex evidence and the indispensable technical work required to

create such exhibits. Transamerica, 590 F. Supp. 2d at 1104.

28

Ultimately, the trial judge is in the best position to determine necessity, having been

involved throughout the proceedings and acutely aware of any case management orders issued

or agreements reached between the parties. Cefalu, at 428; Race Tires, 674 F.3d at 167. The

court should also consider the veracity of the prevailing party’s claimed costs. See Fogleman v.

ARAMCO, 920 F.2d 278, 286 (5th Cir. 1991). A bill need not be a detailed, itemized line-by-line

invoice; but rather just “the best breakdown available from retained records.” Id.

The Cefalu court stated that among the many factors a court might consider, whether

the nature of the information presented genuinely called for such a heightened means of

illustration was a key determinant. Cefalu, 211 F.3d at 428. If the court found the

exemplification method employed was in fact not vital, but rather merely convenient or

extravagant, such an award would fall short of the necessity prong. Id.

In CBT Flint, the court considered a party’s choice to bring in technical consultants to sift

through 1.4 million individual documents formatted in six different source codes to be valid.

CBT Flint, 676 F. Supp. 2d at 1381. The court held the code conversion services were “not the

type [] that attorneys or paralegals are trained for or are capable of providing. The services

are highly technical.” Id. Recognizing an inability to successfully form a claim without

meaningful access to the relevant data, the court awarded the related costs as necessary. Id.

Conversely, the court in Race Tires ultimately held against the necessity of hiring third

parties. Races Tires, 674 F.3d at 168-69. After conceding that many technical tasks fall beyond

the capability of average attorneys and accepting that some final products may fit within

section 1920, the court argued that all of the work leading up to that point was not taxable. Id.

Even after recognizing that “extensive ‘processing’ of ESI [may be] essential to make a

29

comprehensive and intelligible production,” to award such fees as necessary under a section

1920 analysis is “untethered from the statutory mooring.” Id. (emphasis added). For the court

in Race Tires, “indispensability” and necessity somehow carried disparate meanings. Id. at 168.

In the present case, Alan Shore accessed privileged information about an array of

clients. The information spanned numerous legal claims and potentially opened Donnell Young

up to a flood of attorney-client confidentiality concerns. The scope and depth of the breach

had to be ascertained immediately. Every evidentiary aspect of the incursion was locked away

in the hidden temporary metadata files on Donnell Young’s operating servers. As in CBT

Partners, the attorneys at Donnell Young were ill-equipped to conduct a thorough search and

analysis designed to obtain this information. Outside IT consultants were brought in not only to

identify any affected files, but to collate that data into a readable, useable format.

The processing, hard drive imaging, Bates-number identification, and database storage

shell creation employed was necessary to track and collate the vast amounts of data Mr. Shore

accessed. Only then could it be screened for privilege in context with all of the attendant

metadata. As such, those costs are recoverable under the same analysis applied in the

Transamerica and CBT Flint cases. Putting that complex data into bite-size bits to aid the jury in

understanding the complexities of Donnell Young’s pricing schemes, and how Mr. Shore’s

misrepresentation of those schemes occurred, required the employment of IT professionals to

create multimedia presentations for trial, as in Cefalu and Transamerica.

Copies of the relevant ESI provided to other parties were compelled by procedural

requirements, as in Country Vintner and Hecker. Any of petitioners concerns arising from

billing should be addressed under a Fogelman analysis, requiring as thorough a listing as

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possible from available records kept by Donnell Young. This analysis is best applied at the trial

level, as noted in Cefalu, because that is where determinations of necessity are best weighed.

The trial judge in this case saw fit to award all costs under an analysis of section 1920(4).

Because all of Donnell Young’s expenditures were incurred in the steps necessary for

producing either copies of relevant documents or exemplifications illustrating the nature of Mr.

Shore and Crane Poole’s intrusion, this Court should award all of those costs in accordance with

a modern understanding and application of Federal Rule of Civil Procedure 54(d) and the

controlling statute 28 U.S.C. § 1920(4).

CONCLUSION

Shore violated the CFAA when, under Crane Poole’s direction, he accessed Donnell

Young’s protected computer without authorization, or exceeding his authorization, with the

intent to defraud and obtained Donnell Young’s trade secrets. All of the costs incurred

following the breach, whether in making copies of relevant digitally stored information or

producing presentations for trial, were necessarily obtained for use in the prosecution of the

CFAA claim. For the foregoing reasons Respondent, Donnell Young, respectfully requests this

Court to affirm the Thirteenth Circuit’s decision and find that Alan Shore and Crane Poole

violated the Computer Fraud and Abuse Act but reverse the denial of costs, finding in favor of

Respondents.

Dated: October 19, 2013 Respectfully submitted, Team 13 Counsel for Respondents

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APPENDIX A

Title 18: Crimes and Criminal Procedure

Part I: Crimes

Chapter 47: Fraud and False Statements

18 U.S.C.A. § 1030 (2013)

§ 1030. Fraud and related activity in connection with computers

(a) Whoever--

(1) having knowingly accessed a computer without authorization or exceeding

authorized access, and by means of such conduct having obtained information that has

been determined by the United States Government pursuant to an Executive order or

statute to require protection against unauthorized disclosure for reasons of national

defense or foreign relations, or any restricted data, as defined in paragraph y. of section

11 of the Atomic Energy Act of 1954, with reason to believe that such information so

obtained could be used to the injury of the United States, or to the advantage of any

foreign nation willfully communicates, delivers, transmits, or causes to be

communicated, delivered, or transmitted, or attempts to communicate, deliver,

transmit or cause to be communicated, delivered, or transmitted the same to any

person not entitled to receive it, or willfully retains the same and fails to deliver it to the

officer or employee of the United States entitled to receive it;

(2) intentionally accesses a computer without authorization or exceeds authorized

access, and thereby obtains--

(A) information contained in a financial record of a financial institution, or of a

card issuer as defined in section 1602(n) of title 15, or contained in a file of a

consumer reporting agency on a consumer, as such terms are defined in the Fair

Credit Reporting Act (15 U.S.C. 1681 et seq.);

(B) information from any department or agency of the United States; or

(C) information from any protected computer;

(3) intentionally, without authorization to access any nonpublic computer of a

department or agency of the United States, accesses such a computer of that

department or agency that is exclusively for the use of the Government of the United

States or, in the case of a computer not exclusively for such use, is used by or for the

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Government of the United States and such conduct affects that use by or for the

Government of the United States;

(4) knowingly and with intent to defraud, accesses a protected computer without

authorization, or exceeds authorized access, and by means of such conduct furthers the

intended fraud and obtains anything of value, unless the object of the fraud and the

thing obtained consists only of the use of the computer and the value of such use is not

more than $5,000 in any 1-year period;

(5)(A) knowingly causes the transmission of a program, information, code, or command,

and as a result of such conduct, intentionally causes damage without authorization, to a

protected computer;

(B) intentionally accesses a protected computer without authorization, and as a result of

such conduct, recklessly causes damage; or

(C) intentionally accesses a protected computer without authorization, and as a result of

such conduct, causes damage and loss.

(6) knowingly and with intent to defraud traffics (as defined in section 1029) in any

password or similar information through which a computer may be accessed without

authorization, if--

(A) such trafficking affects interstate or foreign commerce; or

(B) such computer is used by or for the Government of the United States;

(7) with intent to extort from any person any money or other thing of value, transmits in

interstate or foreign commerce any communication containing any--

(A) threat to cause damage to a protected computer;

(B) threat to obtain information from a protected computer without

authorization or in excess of authorization or to impair the confidentiality of

information obtained from a protected computer without authorization or by

exceeding authorized access; or

(C) demand or request for money or other thing of value in relation to damage to

a protected computer, where such damage was caused to facilitate the

extortion;

shall be punished as provided in subsection (c) of this section.

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(b) Whoever conspires to commit or attempts to commit an offense under subsection (a) of this

section shall be punished as provided in subsection (c) of this section.

(c) The punishment for an offense under subsection (a) or (b) of this section is--

(1)(A) a fine under this title or imprisonment for not more than ten years, or both, in the

case of an offense under subsection (a)(1) of this section which does not occur after a

conviction for another offense under this section, or an attempt to commit an offense

punishable under this subparagraph; and

(B) a fine under this title or imprisonment for not more than twenty years, or both, in

the case of an offense under subsection (a)(1) of this section which occurs after a

conviction for another offense under this section, or an attempt to commit an offense

punishable under this subparagraph;

(2)(A) except as provided in subparagraph (B), a fine under this title or imprisonment for

not more than one year, or both, in the case of an offense under subsection (a)(2),

(a)(3), or (a)(6) of this section which does not occur after a conviction for another

offense under this section, or an attempt to commit an offense punishable under this

subparagraph;

(B) a fine under this title or imprisonment for not more than 5 years, or both, in the case

of an offense under subsection (a)(2), or an attempt to commit an offense punishable

under this subparagraph, if--

(i) the offense was committed for purposes of commercial advantage or private

financial gain;

(ii) the offense was committed in furtherance of any criminal or tortious act in

violation of the Constitution or laws of the United States or of any State; or

(iii) the value of the information obtained exceeds $5,000; and

(C) a fine under this title or imprisonment for not more than ten years, or both, in the

case of an offense under subsection (a)(2), (a)(3) or (a)(6) of this section which occurs

after a conviction for another offense under this section, or an attempt to commit an

offense punishable under this subparagraph;

(3)(A) a fine under this title or imprisonment for not more than five years, or both, in

the case of an offense under subsection (a)(4) or (a)(7) of this section which does not

occur after a conviction for another offense under this section, or an attempt to commit

an offense punishable under this subparagraph; and

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(B) a fine under this title or imprisonment for not more than ten years, or both, in the

case of an offense under subsection (a)(4) or (a)(7) of this section which occurs after a

conviction for another offense under this section, or an attempt to commit an offense

punishable under this subparagraph;

(4)(A) except as provided in subparagraphs (E) and (F), a fine under this title,

imprisonment for not more than 5 years, or both, in the case of--

(i) an offense under subsection (a)(5)(B), which does not occur after a conviction

for another offense under this section, if the offense caused (or, in the case of an

attempted offense, would, if completed, have caused)--

(I) loss to 1 or more persons during any 1-year period (and, for purposes

of an investigation, prosecution, or other proceeding brought by the

United States only, loss resulting from a related course of conduct

affecting 1 or more other protected computers) aggregating at least

$5,000 in value;

(II) the modification or impairment, or potential modification or

impairment, of the medical examination, diagnosis, treatment, or care of

1 or more individuals;

(III) physical injury to any person;

(IV) a threat to public health or safety;

(V) damage affecting a computer used by or for an entity of the United

States Government in furtherance of the administration of justice,

national defense, or national security; or

(VI) damage affecting 10 or more protected computers during any 1-year

period;

(ii) an attempt to commit an offense punishable under this subparagraph;

(B) except as provided in subparagraphs (E) and (F), a fine under this title, imprisonment

for not more than 10 years, or both, in the case of--

(i) an offense under subsection (a)(5)(A), which does not occur after a conviction

for another offense under this section, if the offense caused (or, in the case of an

attempted offense, would, if completed, have caused) a harm provided in

subclauses (I) through (VI) of subparagraph (A)(i); or

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(ii) an attempt to commit an offense punishable under this subparagraph;

(C) except as provided in subparagraphS (E) and (F), a fine under this title, imprisonment

for not more than 20 years, or both, in the case of--

(i) an offense or an attempt to commit an offense under subparagraphs (A) or (B)

of subsection (a)(5) that occurs after a conviction for another offense under this

section; or

(ii) an attempt to commit an offense punishable under this subparagraph;

(D) a fine under this title, imprisonment for not more than 10 years, or both, in the case

of--

(i) an offense or an attempt to commit an offense under subsection (a) (5)(C)

that occurs after a conviction for another offense under this section; or

(ii) an attempt to commit an offense punishable under this subparagraph;

(E) if the offender attempts to cause or knowingly or recklessly causes serious bodily

injury from conduct in violation of subsection (a)(5)(A), a fine under this title,

imprisonment for not more than 20 years, or both;

(F) if the offender attempts to cause or knowingly or recklessly causes death from

conduct in violation of subsection (a)(5)(A), a fine under this title, imprisonment for any

term of years or for life, or both; or

(G) a fine under this title, imprisonment for not more than 1 year, or both, for--

(i) any other offense under subsection (a)(5); or

(ii) an attempt to commit an offense punishable under this subparagraph.

[(5) Repealed. Pub.L. 110-326, Title II, § 204(a)(2)(D), Sept. 26, 2008, 122 Stat.

3562]

(d)(1) The United States Secret Service shall, in addition to any other agency having such

authority, have the authority to investigate offenses under this section.

(2) The Federal Bureau of Investigation shall have primary authority to investigate offenses

under subsection (a)(1) for any cases involving espionage, foreign counterintelligence,

information protected against unauthorized disclosure for reasons of national defense or

foreign relations, or Restricted Data (as that term is defined in section 11y of the Atomic Energy

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Act of 1954 (42 U.S.C. 2014(y)), except for offenses affecting the duties of the United States

Secret Service pursuant to section 3056(a) of this title.

(3) Such authority shall be exercised in accordance with an agreement which shall be entered

into by the Secretary of the Treasury and the Attorney General.

(e) As used in this section--

(1) the term “computer” means an electronic, magnetic, optical, electrochemical, or other high

speed data processing device performing logical, arithmetic, or storage functions, and includes

any data storage facility or communications facility directly related to or operating in

conjunction with such device, but such term does not include an automated typewriter or

typesetter, a portable hand held calculator, or other similar device;

(2) the term “protected computer” means a computer--

(A) exclusively for the use of a financial institution or the United States Government, or,

in the case of a computer not exclusively for such use, used by or for a financial

institution or the United States Government and the conduct constituting the offense

affects that use by or for the financial institution or the Government; or

(B) which is used in or affecting interstate or foreign commerce or communication,

including a computer located outside the United States that is used in a manner that

affects interstate or foreign commerce or communication of the United States;

(3) the term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, and

any other commonwealth, possession or territory of the United States;

(4) the term “financial institution” means--

(A) an institution, with deposits insured by the Federal Deposit Insurance Corporation;

(B) the Federal Reserve or a member of the Federal Reserve including any Federal

Reserve Bank;

(C) a credit union with accounts insured by the National Credit Union Administration;

(D) a member of the Federal home loan bank system and any home loan bank;

(E) any institution of the Farm Credit System under the Farm Credit Act of 1971;

(F) a broker-dealer registered with the Securities and Exchange Commission pursuant to

section 15 of the Securities Exchange Act of 1934;

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(G) the Securities Investor Protection Corporation;

(H) a branch or agency of a foreign bank (as such terms are defined in paragraphs (1)

and (3) of section 1(b) of the International Banking Act of 1978); and

(I) an organization operating under section 25 or section 25(a) of the Federal Reserve

Act;

(5) the term “financial record” means information derived from any record held by a financial

institution pertaining to a customer's relationship with the financial institution;

(6) the term “exceeds authorized access” means to access a computer with authorization and

to use such access to obtain or alter information in the computer that the accesser is not

entitled so to obtain or alter;

(7) the term “department of the United States” means the legislative or judicial branch of the

Government or one of the executive departments enumerated in section 101 of title 5;

(8) the term “damage” means any impairment to the integrity or availability of data, a program,

a system, or information;

(9) the term “government entity” includes the Government of the United States, any State or

political subdivision of the United States, any foreign country, and any state, province,

municipality, or other political subdivision of a foreign country;

(10) the term “conviction” shall include a conviction under the law of any State for a crime

punishable by imprisonment for more than 1 year, an element of which is unauthorized access,

or exceeding authorized access, to a computer;

(11) the term “loss” means any reasonable cost to any victim, including the cost of responding

to an offense, conducting a damage assessment, and restoring the data, program, system, or

information to its condition prior to the offense, and any revenue lost, cost incurred, or other

consequential damages incurred because of interruption of service; and

(12) the term “person” means any individual, firm, corporation, educational institution,

financial institution, governmental entity, or legal or other entity.

(f) This section does not prohibit any lawfully authorized investigative, protective, or

intelligence activity of a law enforcement agency of the United States, a State, or a political

subdivision of a State, or of an intelligence agency of the United States.

(g) Any person who suffers damage or loss by reason of a violation of this section may maintain

a civil action against the violator to obtain compensatory damages and injunctive relief or other

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equitable relief. A civil action for a violation of this section may be brought only if the conduct

involves 1 of the factors set forth in subclauses (I), (II), (III), (IV), or (V) of subsection (c)(4)(A)(i).

Damages for a violation involving only conduct described in subsection (c)(4)(A)(i)(I) are limited

to economic damages. No action may be brought under this subsection unless such action is

begun within 2 years of the date of the act complained of or the date of the discovery of the

damage. No action may be brought under this subsection for the negligent design or

manufacture of computer hardware, computer software, or firmware.

(h) The Attorney General and the Secretary of the Treasury shall report to the Congress

annually, during the first 3 years following the date of the enactment of this subsection,

concerning investigations and prosecutions under subsection (a)(5).

(i)(1) The court, in imposing sentence on any person convicted of a violation of this section, or

convicted of conspiracy to violate this section, shall order, in addition to any other sentence

imposed and irrespective of any provision of State law, that such person forfeit to the United

States--

(A) such person's interest in any personal property that was used or intended to be used

to commit or to facilitate the commission of such violation; and

(B) any property, real or personal, constituting or derived from, any proceeds that such

person obtained, directly or indirectly, as a result of such violation.

(2) The criminal forfeiture of property under this subsection, any seizure and disposition

thereof, and any judicial proceeding in relation thereto, shall be governed by the provisions of

section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C.

853), except subsection (d) of that section.

(j) For purposes of subsection (i), the following shall be subject to forfeiture to the United

States and no property right shall exist in them:

(1) Any personal property used or intended to be used to commit or to facilitate the

commission of any violation of this section, or a conspiracy to violate this section.

(2) Any property, real or personal, which constitutes or is derived from proceeds

traceable to any violation of this section, or a conspiracy to violate this section.

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APPENDIX B

Title VII: Judgment

Federal Rules of Civil Procedure Rule 54 (2013)

Rule 54. Judgment; Costs

(a) Definition; Form. “Judgment” as used in these rules includes a decree and any order from

which an appeal lies. A judgment should not include recitals of pleadings, a master's report, or a

record of prior proceedings.

(b) Judgment on Multiple Claims or Involving Multiple Parties. When an action presents more

than one claim for relief--whether as a claim, counterclaim, crossclaim, or third-party claim--or

when multiple parties are involved, the court may direct entry of a final judgment as to one or

more, but fewer than all, claims or parties only if the court expressly determines that there is

no just reason for delay. Otherwise, any order or other decision, however designated, that

adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties

does not end the action as to any of the claims or parties and may be revised at any time before

the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.

(c) Demand for Judgment; Relief to Be Granted. A default judgment must not differ in kind

from, or exceed in amount, what is demanded in the pleadings. Every other final judgment

should grant the relief to which each party is entitled, even if the party has not demanded that

relief in its pleadings.

(d) Costs; Attorney's Fees.

(1) Costs Other Than Attorney's Fees. Unless a federal statute, these rules, or a court

order provides otherwise, costs--other than attorney's fees--should be allowed to the

prevailing party. But costs against the United States, its officers, and its agencies may be

imposed only to the extent allowed by law. The clerk may tax costs on 14 days' notice.

On motion served within the next 7 days, the court may review the clerk's action.

(2) Attorney's Fees.

(A) Claim to Be by Motion. A claim for attorney's fees and related nontaxable expenses

must be made by motion unless the substantive law requires those fees to be proved at

trial as an element of damages.

(B) Timing and Contents of the Motion. Unless a statute or a court order provides

otherwise, the motion must:

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(i) be filed no later than 14 days after the entry of judgment;

(ii) specify the judgment and the statute, rule, or other grounds entitling the

movant to the award;

(iii) state the amount sought or provide a fair estimate of it; and

(iv) disclose, if the court so orders, the terms of any agreement about fees for

the services for which the claim is made.

(C) Proceedings. Subject to Rule 23(h), the court must, on a party's request, give an

opportunity for adversary submissions on the motion in accordance with Rule 43(c) or

78. The court may decide issues of liability for fees before receiving submissions on the

value of services. The court must find the facts and state its conclusions of law as

provided in Rule 52(a).

(D) Special Procedures by Local Rule; Reference to a Master or a Magistrate Judge. By

local rule, the court may establish special procedures to resolve fee-related issues

without extensive evidentiary hearings. Also, the court may refer issues concerning the

value of services to a special master under Rule 53 without regard to the limitations of

Rule 53(a)(1), and may refer a motion for attorney's fees to a magistrate judge under

Rule 72(b) as if it were a dispositive pretrial matter.

(E) Exceptions. Subparagraphs (A)-(D) do not apply to claims for fees and expenses as

sanctions for violating these rules or as sanctions under 28 U.S.C. § 1927.

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APPENDIX C

Title 28: Judiciary and Judicial Procedure Part V: Procedure

Chapter 123: Fees and Costs

28 U.S.C. § 1920 (2013) § 1920. Taxation of costs 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.