Section 1920 Can Permit Recovery of Electronic Discovery Costs
Upon entry of summary judgment in favor of Defendant in the case of Fitbug Limited v. Fitbit, Inc., Case No. 13-cv-01418, Defendant submitted a bill of costs to the clerk of the court pursuant to 11 U.S.C. Section 1920, which permits the clerk to tax, as costs, “minor” and “incidental” litigation expenses. Plaintiff asked for a reduction in the costs, which included costs for electronic discovery and document production.
The United States District Court for the Northern District of California, in its Order entered May13, 2015, noted that Section 1920 was enacted in the 19th century and thus was silent on whether eDiscovery expenses could be taxed as costs thereunder. However, the section does authorize costs for making copies, and other courts have held that this is analogous to many electronic discovery expenses.
The court held that the following eDiscovery expenses are, indeed, taxable as costs pursuant to 11 U.S.C. Section 1920:
- Charges for collection, scanning and conversion of documents where the parties agreed to a particular production format and the costs incurred were necessary to comply with such agreement, including metadata extraction necessary to comply with the agreement, and not for the convenience of counsel; and
- Charges for delivery of production, including Bates numbering and confidentiality designation as well as loading information into a physical medium for delivery, because these charges were “expressly contemplated” by the parties’ discovery agreement and because the costs were necessarily incurred exemplification costs – without the conversion and organization of the files, “any copy is relatively useless.”