The Latest on the Recoverability of E-Discovery Costs in Federal Litigation

Modern complex litigation necessarily entails significant e-discovery costs.  As those costs have ballooned, so have litigants’ attempts to secure an award of those costs after prevailing on the merits of their claims or defenses. Litigants have attempted to secure this award of e-discovery costs under Rule 54(d) of the Federal Rules of Civil Procedure and 28 U.S.C. § 1920. Rule 54 provides that costs, other than attorney fees, “should be allowed to the prevailing party.” In turn, § 1920 provides that a court may tax certain items as costs, including “[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case.” 28 U.S.C. § 1920(4).  Unfortunately, courts have adopted varying interpretations of the scope of § 1920 in relation to e-discovery charges.