Lawyers are constantly asked by clients if there is any way to recover attorneys’ fees and costs from the opposing party. The typical response is that such fees and costs are only recoverable by the successful party by contract, or under a specific statute. This response often sends lawyers to the “rule books” so that they may determine if a statute is applicable to their case.
One statute all litigators who practice in federal court must remember is 28 U.S.C. § 1920(f), which provides that the “judge or clerk of any court of the United States may tax as costs” against the unsuccessful party for items, including, “costs of making copies of any materials where the copies are necessarily obtained for use in the case.”
Creative lawyers have argued that, under 28 U.S.C. § 1920(f), their clients are entitled to be reimbursed for certain eDiscovery costs, including imaging hard drives. Until recently, there were two schools of thought on how much of the eDiscovery costs were recoverable. The Third Circuit in Race Tires America, Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158 (3d Cir. 2012) took a more limited view (not allowing for recovery of eDiscovery costs), while the Federal Circuit in CBT Flint Partners, LLC v. Return Path, Inc., 737 F.3d 1320 (Fed. Cir. 2013) took a more expansive view (allowing for recovery of some eDiscovery costs, including copying or imaging hard drives).
The Sixth Circuit has now weighed in on the issue in Colosi v. Jones Lang LaSalles Americas, Inc., 2015 U.S. App. Lexis 4184 (6th Cir. 2015) finding that 28 U.S.C. § 1920(f) allows for the recovery of the costs associated with imaging a hard drive. The Sixth Circuit based its decision on a 2008 amendment to 28 U.S.C. § 1920(f) which replaced the word “papers” with “materials,” as well as the definition of the word “copying.” The Sixth Circuit’s decision was also based on the fact that the party being taxed costs decided to only make her hard drive available instead of copying and producing materials in response to discovery demands by the prevailing party. In performing its analysis the Sixth Circuit expressly rejected the Third Circuit’s decision in Race Tires as “overly restrictive”
The Sixth Circuit’s decision is another in a line of cases which should be considered once successful in a litigation and when seeking to answer the client’s question if there is a way to recoup costs and expenses from the losing party.