Sixth Circuit Takes Broader View of Taxable eDiscovery Costs Under § 1920
In Colosi v. Jones Lange LaSalle Americas, Inc., No. 14-3710 (6th Cir. Mar. 17, 2015), the Sixth Circuit considered the taxability of eDiscovery costs under 28 U.S. § 1920 and took a broader view of permissible costs than other circuits have.
As the prevailing party, Defendant sought recovery of taxable costs under Section 1920, including eDiscovery related costs. The trial court awarded Defendant the costs it incurred for computer forensic imaging. Plaintiff appealed, citing the Third Circuit’s oft-cited Race Car Tires Am., Inc. v. Hoosier Racing Tire Corp., 674 F3d 158 (3rd Cir. 2012) opinion, which denied computer imaging costs and narrowly held that the only way a court could tax an ESI imaging cost under Section 1920’s “making copies” provision would be where a party converted documents to an agreed-upon format and burned them onto a DVD.
The Sixth Circuit considered the Third Circuit’s opinion and deemed it an “overly restrictive” interpretation of Section 1920. The court reviewed the plain language of the statute, and concluded that forensic imaging a hard drive (which the court reasoned was the equivalent of making a copy of the hard drive) fell squarely within the statute’s “making copies” provision, provided that it was “necessary” for the litigation (as the court found it was in this instance). The court did note that other costs related to imaging a hard-drive, including de-duplication, indexing, or other non-copying electronic discovery costs, would not have been taxable under the statute.
Did you know? Congress passed 28 U.S. § 1920 in 1948 and has amended the statute twice, but the statute still does not specifically address eDiscovery costs.