September 23, 2020 Top Story

Prevailing Parties Recover Some, Not All, E-discovery Costs

Courts interpret statutory standard for “making copies” narrowly

By William H. Newman

A party that prevails in federal court may be entitled to recover some e-discovery costs, but only those directly related to making copies. The U.S. Court of Appeals for the D.C. Circuit is the latest jurisdiction to weigh in on which tasks constitute “the costs of making copies” for the purpose of recovery pursuant to 28 U.S.C. § 1920(4) (Section 1920), the statute that governs post-litigation cost awards in federal district court. Falling in line with similar decisions in other jurisdictions, the D.C. Circuit held in U.S. ex rel. Barko v. Halliburton that Section 1920 applies to electronic file conversion costs, but not to hosting, organizing, or Bates stamping documents. ABA Section of Litigation leaders say the decision emphasizes that Section 1920, which was last revised in 2008, is out of touch with the practical realities of e-discovery in 2020.

The plaintiff appealed the court's decision to award the defendant with more than $100,000 for the cost of making copies

The plaintiff appealed the court's decision to award the defendant with more than $100,000 for the cost of making copies

Credit: Abscent84 | iStockphoto by Getty Images

Court Excludes E-discovery Costs Unrelated to Copying

In Barko, defendant KBR prevailed at summary judgment, defeating a False Claims Act suit that alleged it had inflated costs and accepted kickbacks while administering military contracts in wartime Iraq. The litigation was lengthy and contentious, with 2.4 million pages of documents produced. Accordingly, the district court awarded KBR more than $100,000 in costs pursuant to Section 1920.

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