GUEST BLOG: eDiscovery Copying Costs Not Recovered



Barry Barnett has been a Guest Blogger in the past, his Blawgletter provides great thoughts, and insights. I read his blogs regularly. Over the years Barry and I have had a number of cases together and he is an outstanding trial partner at Susman Godfrey.

Barry Barnett


Winner Has to Pay Bulk of Its Own E-Discovery Costs, Federal Circuit Says

The expense of a big document case lies mainly in the looking for, the sifting through, and the analysis of your client’s, and the other side’s, megabytes and terabytes of ESI — “electronically stored information”, in the words of Rule 26 of the Federal Rules of Civil Procedure.

You’d like to shift that burden to your opponent, right? You think you should have a right to do that if you’ve won, correct? You suspect that the Constitution, perhaps something in penumbras and emanations of the Bill of Rights, entitles you to tack that on to the honking loss you just tattoed across your adversary’s forehead, huh?

Dream on, the Federal Circuit ruled on Friday the 13th.

The panel held that 28 U.S.C 1920 limits the taxing of those court costs that concern ESI to the expense of “making copies”. Nothing but copy-making. Although the court did allow that you can get the extra dollars you spent on making fancy copies if the losing side asked you for the info that made fancy stuff (e.g., imaging) necessary. CBT Flint Partners, LLC v. Return Path, Inc., No. 13-1036 (Fed. Cir. Dec. 13, 2013).

The case involved a patent infringement claim that the plaintiff CBT lost on summary judgment. The district court had ruled the patent invalid for indefiniteness and then awarded the defendants Return Path and Cisco more than $300,000 in e-discovery “costs”. The Federal Circuit vacated the award and sent the case back. The opinion brims with advice on what ESI expenses count as section 1920 costs and which don’t. Blawgletter says check it out.

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