The amount of electronically stored information in the United States doubles every 18-24 months, and 90 percent of U.S. corporations are currently engaged in some kind of litigation. These factors, combined with the new way we store our information, have turned discovery into a complicated and expensive process.
In response, parties have attempted to pass these costs off to the non-prevailing party as court costs under 28 U.S.C § 1920 ("Section 1920"), which enumerates six items that can be awarded as court costs. The U.S. Courts of Appeals are split regarding the interpretation of Section 1920. If the statute is interpreted broadly, a variety of ediscovery tasks, ranging from hiring outside counsel to creating litigation-related databases, can be properly awarded as costs. If the statute is read more narrowly, however, courts will limit the type of ediscovery costs that can be awarded under the language of the statute, which will reduce e-discovery court costs.
This Comment will describe the current state of the circuit split and discuss the various approaches to interpreting Section 1920. This Comment will then describe the Taniguchi v. Kan Pacific Saipan, Ltd. case in detail and analyze how the case's dicta might affect the ediscovery court costs debate. Finally, this Comment will propose a judicial test for interpreting Section 1920 in a uniform manner. This Comment ultimately urges the U.S. Supreme Court to intervene and mandate such a test.
Emily P. Overfield,
Shifting the E-Discovery Solution: Why Taniguchi Necessitates a Decline in E-Discovery Court Costs,
Dick. L. Rev.
Available at: https://ideas.dickinsonlaw.psu.edu/dlra/vol118/iss1/8