News, Developments and Practical Advice on eDiscovery in the trenches of Litigation

Discovery Advocate

Home | Discovery Advocate

We previously discussed both the <a href="http://www.discoveryadvocate.com/2012/03/23/third-circuit-limits-taxable-ediscovery-costs/">Third Circuit’s decision</a> 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 <a href="http://www.discoveryadvocate.com/2012/06/26/will-scotus-weigh-in-on-the-taxation-of-e-discovery-costs/">writ of certiorari</a> to the Supreme Court.  On October 1, the Supreme Court <a href="http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/11-1520.htm">denied</a> 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 <a href="http://articles.law360.s3.amazonaws.com/0353000/353126/RacingTirePetition.pdf">cert petition</a> and on <a href="http://www.circuitsplits.com/2012/03/recovering-the-cost-of-e-discovery.html">Nicholas Wagoner</a>’s blog). 

It may well be that the Supreme Court felt its guidance in <a href="http://www.supremecourt.gov/opinions/11pdf/10-1472.pdf">Taniguchi v. Kan Pacific Saipan, Ltd.</a> 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.

SCOTUS Declines to Weigh In on the Taxation of e-Discovery Costs