You Want $60,572.61 in Costs? Here is $25.48

It is not a good day when you seek $60,572.61 for eDiscovery costs as a prevailing party and only get $25.48.

Don’t spend it all in one place.

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The Court denied the eDiscovery costs applying Race Tires America, Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158 (3d Cir. 2012), because “eDiscovery costs” are not “costs of making copies” under the taxation of costs statute 28 U.S.C. § 1920(4). Thompson, I.G., L.L.C. v. Edgetech I.G., Inc., 2014 U.S. Dist. LEXIS 23189, 6-9 ( E.D. Mich. Feb. 25, 2014)

The only costs the Court allowed was the 10/12/2012 invoice for “Electronic File Conversion” for $25.48.

Bow Tie Thoughts

I am strongly in favor of updating our taxation of costs statute to include recovering collection and processing costs of electronic discovery. These steps actually are making a “copy” of the data. However, many Courts have not recognized how the collection and processing of data is “making a copy.”

Service providers can help their attorney clients by explaining how collection was done and why the collection was done using a specific methodology. The same for processing and using technology assisted review. These invoices cannot simply say it was “necessary for the case.” Those are not magic words that grant cost recovery.

Judges need to understand the technology and reasons why steps were taken to know why something was “necessary.” These cannot be simple declarations “it was necessary.” Help the judge understand how and why technology was used to create a defensible sound copy of the ESI, and the following steps to identify relevant information.

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.

  1. Reblogged this on Kris Wasserman and commented:
    I’ve lost count of how many “needs analysis” documents I’ve written for attorneys trying to defend an undue burden claim, or attempting to recover costs. I’m definitely with Josh on this one about updating the rules to reflect the digital age.

    Inside Counsel Magazine has a great article that references this particular case, along with a series of others that specifically covers dealing with the costs of eDiscovery entitled, “3 Cases Help Shape How Lawyers Conduct and Pay for eDiscovery” — http://j.mp/1ijTEaG