We previously discussed both the Third Circuit’s decision striking $300,000 in e-discovery costs from a cost award as non-taxable under 28 U.S.C. § 1920, and the defendants’ subsequent petition for writ of certiorari to the Supreme Court. On October 1, the Supreme Court denied the petition.
Keep an eye on the appellate courts to see if a true and meaningful split in this area develops (others’ opinions on the existence and extent of a split can be found in the Race Tires cert petition and on Nicholas Wagoner’s blog).
It may well be that the Supreme Court felt its guidance in Taniguchi v. Kan Pacific Saipan, Ltd. was sufficient to address the recoverability of e-discovery costs. In Taniguchi, the Supreme Court recently reiterated the limited reach of Section 1920, and reversed the Ninth Circuit’s decision that costs for a translator of written documents constituted cost of an “interpreter” under Section 1920(6). 132 S. Ct. at 2005. The Supreme Court rejected the view that “Rule 54(d) creates a presumption of statutory construction in favor of the broadest possible reading of the costs enumerated in § 1920.” Instead, the Court reasoned, Section 1920 has a “narrow scope” covering “relatively minor, incidental expenses,” and found that a “compelling reason” is required to stretch the scope of Section 1920 beyond the “ordinary meaning of the costs items.” Id.