Will the Supreme Court Clarify Electronic Discovery Taxation of Costs Under Section 1920?
Title 28 U.S.C. § 1920 should be well known to litigators practicing in federal court, as it authorizes taxation of costs for printed or electronically recorded transcripts, fees and disbursements for printing and witnesses, and fees for the costs of copies. As noted in our blog about the eDiscovery case Race Car Tires II, the Third Circuit limited the taxable discovery costs to the costs of copies, including converting native files to TIFF, scanning documents into electronic images and transferring VHS tapes to DVD format.
Recently, a California district court noted, yet declined to follow, the Third Circuit’s narrow approach to taxation of eDiscovery costs. In In re Online DVD Rental Antitrust Litig., 2012 WL 1414111 (N.D. Cal. Apr. 20, 2012), the Northern District of California held that a “broad construction of section 1920 with respect to electronic discovery costs—under the facts of this case—is appropriate.” Id. Citing the principle from the Ninth Circuit case Taniguchi v. Kan Pacific Saipan, 633 F.3d 1218, 1221 (9th Cir. 2011), that district courts are free to interpret the meaning of the cast of categories listed within § 1920, and although it was not clear from the opinion what precise eDiscovery costs were at issue other than TIFF conversion costs, the only costs the court disallowed were those relating to production of certain black and white PowerPoint documents, costs relating to restamping of documents, and costs for RASCII transcripts.
A writ of certiorari has been filed in Race Car Tires II and the district court’s ruling In Re Online DVD Rental is being appealed to the Ninth Circuit. Will these cases and the issues of taxation of eDiscovery costs eventually come to a head before the Supreme Court? Perhaps the Supreme Court will have to delve deeper into electronic data discovery issues to clarify and set clear judicial standards for courts across the nation.