position here will become irrelevant i'm here to argue the cost of peel deer appeals judge will the taxation of cost against here on a number of items because the judge's ruling and the defendant's position  hundred twenty princes would you say the law is becoming more expensive in allowing touchable koch i would say the opposite i would say the law is becoming in light of the tenet good you decision which interpreted different subsection are intended to be narrow in scope that are limited to relatively minor incidental expenses wasn't just talked in or addressing their copying c with the different provisions of statute and we disagree because we think that that's not really ascribing appropriate deference to a decision of the supreme court the supreme court's decisions really unlike the decisions of intermediate federal courts often are because of the supreme court's limited docket often set forth standards that built the lower courts apply without limiting the case to its particular fact but it's not just kind of gucci that that that i think has influenced the the law going forward but there's an entire line of cases in a number of circuits exemplified most notably by the third circuit's decision in it's called race tires race tires actually came out a approve the taxation of costs for a deposition it seems if it broadcast great discretion to the to the district court to assign taxable cost doesn't it does but i don't believe that would be the position costs ok so there's two parts to it first you have to determine whether the categories of cost that the defendant sought and the court awarded can permissibly be comprised within section one hundred twenty francis fo and that's a decision that's a matter of statutory interpretation that's a decision that's made on a day no basis second if and only if this court determines that these categories of cost can be taxable and we maintain they are not then and only then would you go to the second step which would be to say was the district court's taxation of them an abuse of discretion we don't even get there because we're still at the first step of statutory interpretation and support for my framework that i just gave your honor with in the circuits case and then right rico which sets up those those two steps so that while it is true that defendants in their briefs argue very strongly agree that the district court is entitled to an exercise of discretion but it is still the case nonetheless under ten to gucci and under the widely applied standards that are applied in in in a growing number of circuits that the district court does not have discretion to award costs that are not covered by the statute the discretion is the second step so  it's there there are cases in which appellate courts including the eighth circuit have emphasized the discretion of the district court but that doesn't get you past the question of what is the interpretation is that a tory terms so what are we talking about to turn the terms exemplification the term making copies and the term necessarily obtain for use in the case just to be clear mr anthony if we should disagree with your reading of this factory and come to the conclusion that the district court was under the circumstances within the strike dory and that then you lose his job because he has the discretion that we think on this record this court could find an abuse of discretion but our argument in our briefs and on my argument before your honor is is that the judge really of the tax costs that are not covered by the statute but let me say a handled storage costs two different ways for two different cases in this case for no reason and the two phases were the period of time prior to this court's previous opinion in this case and then the period of time after for the previous period before the previous appeal but then for the second period of time the clerk recognizing that there was a local district court decision called home are considering  disallows that the district court disallowed it for the second period of time now on appeal the defendant in particular great plaintiffs brief argues well there you go that's an exercise of discretion the court said sometimes they got them sometimes they don't that's a matter of discretion and we argue that's not even conceivably a valid exercise of discretion that's an abuse of discretion if treating it like situations differently without a reason is the very pic to the the number of cases that we cited in our brief including among other things decisions of the lower courts within the eighth circuit cases like the amana society case i've mentioned the h and it's not all that into it if it's tempting to think that for example any costs associated with electronically stored information or yes i are somehow  somehow related to copying but the but the court's decisions in numerous circuits the third circuit decision in race tires or force circuits decision is cited in our brief  associated with the so called fiesta collecting and preserving the data processing and indexing that keyword searching the data those three steps under race tires those are not taxable only the latter two steps of converting electronic files to an agreed format such as tips and scanning paper copies are chargeable so under race tires and also the board circuits decision and countr not taxable they may be important and the decisions of a number of boards have recognize that these may be things that lawyers have to do in order to make the  discovery readily searchable or usable or practical but that does not make them taxable what race tires and in the vast majority of decisions since it makes throughout the years exercise their discretion in the wording costs and in doing so have analyzed the scope of twenty eight u s c section nine hundred twenty four and you come in support of that argument if you look at the supreme court's to expenses not specifically allowed by the statute and they're referring to the statute nine hundred twenty subparagraph four which is at issue in this case which relates to two categories of cost one of which is the simplification and the other which mentioned as well as race tires those cases are distinguishable on the fact that there was no e s i agreement in those cases in those cases the parties just produce documents without any specification as to for example the specific types  new party post remand was was my client well known corporate and they were out of the trial roughly eight months before trial and with moving forward in the case we got a copy of the of the from the original case and proceeded according to  would not be a workable as a cost however if that was involved in database up for example in stage one when the hard drives from the custodians of the different parties were being image in the database set up stage three where the vendor was preparing his documents to be talking to a cd to be delivered for example to do year as part of a document production those would be a workable if it was stage two they would not under the force law and to the circuit more and more we're going towards electronic discovery which is all to present this discord and many chords problems it where do you draw the line but i think that line drawing has been done i think words are assyrian to the client but i'll say that i think mr cheney's confections admirable in this court illustrates a little bit of the way we were treated in the district court we made these arguments in front of judge ruling the district court off on the particular provision in principle of eleventh circuit law which would not apply here so it's distinguishable but i want to add one thing because mr he talked about the e s i agreement and that's an important point it's argued as a part and e s i agreement is not the same thing as a cost shifting agreements they're very different as the courts have recognized and one of the cases cited in our brief a couple of cases the plantronics case in the northern district of california in the life  plans case in the northern district of new york of recognize this because it is one thing to say that the parties have reached some kind of an agreement on how to apportion costs which which happens in some cases for example that in re rico case in the federal circuit it is another thing entirely where you have a situation as in the dear versus bush hard case where there's simply and vs i agree that is not a cost shifting agreement and properly understood the law in this area including under race making it taxable because just because it's in that yes i agree to this or any other yes i get it does not make all those activities making copies and race tires and country ventnor and all the cases under them these are not just random third fourth circuit to a client that shows disbursements there are plenty of costs that lawyers incur that are important useful helpful in presenting evidence according helpful to the litigants that are not taxable and and race tires illustrates that the plantronics case makes that very clear and so there's of that because the definition isn't just anything necessary for use in the