A few months ago, the Third Circuit slashed a district court’s award of costs by over $300,000, holding that with the exception of scanning and converting native files to TIFF format, e-discovery costs are not recoverable as taxable costs against a losing party under 28 U.S.C. § 1920(4). (See this blog’s discussion of the Third Circuit’s “sizzling opinion”.)
Now, the defendants in Hoosier Racing Tire Corp. v. Race Tires America, Inc. have petitioned the Supreme Court for writ of certiorari, arguing that the Third Circuit ignored the “plain language” of the statute and that the Third Circuit’s holding creates a Circuit conflict. In particular, Petitioners focus on the Federal Circuit’s decision in In re Ricoh Patent Litigation, which broadly interpreted 28 U.S.C. § 1920(4), and allowed the prevailing party to recover the costs incurred in creating a document production database and other related e-discovery vendor activities.
Bloggers received a lot of ink in the cert petition. Among others, the petition cited Joe Palazzola’s terrific WSJ Law Blog post (the source of our “sizzling opinion” reference), and Nicholas Wagoner’s Circuit Splits (as authority for the existence of a circuit split). In mid-March Wagoner identified the taxing of e-discovery costs as a matter “ripe for review.” Whether the Supreme Court will agree remains to be seen.