Court clarifies standard for recovery of e-discovery costs.
Position | E-DISCOVERY |
The costs of producing documents for litigation have become a significant burden for the parties involved. In fact, e-discovery costs often reach into the hundreds of thousands of dollars. A recent decision by the U.S. Court of Appeals for the Federal Circuit (CBTFlint Partners, LLC v. Return Path Inc.) provides a guideline for determining the recoverability of those costs.
28 U.S.C. [section] 1920 states that among the recoverable expenses are "the costs of making copies of any materials where the copies are necessarily obtained for use in the case," according to Shane Olafson, a partner at Lewis Roca Rothberger LLP, in a recent The National Law Review article. "District courts have been all over the map when deciding what constitutes 'making copies' for purposes of recovering taxable costs associated with e-discovery," Olafson wrote.
The federal circuit court reviewed the history of Federal Rules section 1920, The Sedona Conference[R] principles, and other federal court decisions in concluding that section 1920 applies only to documents produced in accordance with Rule 26 or other discovery rules and does not apply to documents a party creates for its own litigation or other use.
Stated the federal circuit: "[R] ecoverable costs under section 1920(4) are those costs necessary to duplicate an electronic document in as faithful and complete a manner as required by rule, by court order, by agreement of the parties, or otherwise ... But only the costs of creating the produced duplicates are included, not a number of preparatory or ancillary costs commonly incurred leading up to, in conjunction with, or after duplication."
In its final opinion, the federal circuit focused on whether various tasks were necessary to fulfill a party's discovery obligation...
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