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What e-discovery costs are recoverable?

The Supreme Court has yet to weigh in, leaving the issue open for interpreation by other federal courts

Read InsideCounsel's full story about how courts have ruled on e-discovery reimbursement requests.

A key issue for federal courts continues to be interpreting what parts of the expensive collection, processing and production of electronic data are included in the terms “exemplification” and “making copies of any materials,” the costs for which are recoverable under the U.S. Code.

In its March 2012 decision in Race Tires America, Inc. v. Hoosier Racing Tire Corp., the 3rd Circuit held that only the costs of “scanning and file format conversion” met those criteria. The court excluded the major costs to search and gather relevant electronic data and reduced the defendants’ award from $367,000 to $30,000. In October 2012, the Supreme Court denied the defendants’ petition for writ of certiorari, leaving the question of recoverable e-discovery costs to interpretation by the federal courts, at least for now.  

And the most recent Supreme Court case on recovery of other litigation costs is not encouraging for defendants. In deciding a case involving costs for interpreters, the high court in Taniguchi v. Kan Pacific Saipan, Ltd., wrote in May 2012 that “costs are limited to relatively minor, incidental expenses … limited by statute and modest in scope.”


Michael Kozubek

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