Third Circuit Considers Application of 28 USC Section 1920 to ESI Costs
In Camesi et. al. v. University of Pittsburgh Medical Center et. al., Case No. 15-1865 (3rd Cir., Mar. 21, 2016), class action Plaintiffs sued Defendants for violations of the FLSA. After the class was conditionally certified, a long discovery period commenced, marked by a heated dispute regarding Plaintiffs’ request for certain electronically stored information (ESI).
After two motions to compel granted in Plaintiffs’ favor, the court concluded that Defendants had not reasonably complied with discovery rules. Defendants filed two motions for protective orders to avoid having to produce the ESI, both of which the court denied. Ultimately, the parties entered into a consent order staying all discovery issues until after Plaintiffs reached stage two of its class certification. Defendants filed a motion to decertify the class, which the court granted. The court dismissed Plaintiffs’ appeal of the order decertifying their class, and Defendants filed a bill of costs. Plaintiffs objected, but the clerk entered costs, including $310,000 for copying. Plaintiffs moved to have the ESI taxation of costs reviewed, and the District Court upheld them. Plaintiffs appealed to the Third Circuit.
The court looked at 28 USC § 1920 to determine whether the ESI taxation of costs was proper. In the Third Circuit, case law has limited the definition of “copy” under Section 1920(4) to only the conversion of native files to TIFF or scanning originals to make duplicates. Section 1920 does not provide for recovery of the costs of “charges necessarily incurred to discharge discovery obligations.” Defendants argued that they only tried to recover costs for digital duplication; the Court found that Defendants had not described with sufficient detail to determine whether they met the standard. The Court reversed and remanded for further review.