Given the ever expanding presence, methods and costs of e-discovery in litigation today, it is imperative that inside and outside counsel consider and be informed as to whether these costs will ultimately be recoverable under 28 U.S.C. § 1920 (Section 1920) and whether there are other means available prior to and during litigation to address potential cost shifting or cost recovery associated with e-discovery.
Section 1920 generally governs the taxation of costs by a prevailing party against the losing party under Federal Rule of Civil Procedure 54(d)(1). Specifically, subsection four permits the clerk or court to tax as costs “[f]ees for exemplification and costs of making copies of any materials where the copies are necessarily for use in the case.” However, the scope of what constitutes “exemplification and costs of making copies” in the context of electronic discovery is unclear and courts are divided as to the extent which Section 1920(4) allows a prevailing party to recover all of its costs for a vendor retrieving, organizing and producing electronic stored information (ESI) from its opponent. The analysis is often case specific and dependent on the district court’s interpretation of the statute.