CBT Flint Partners, LLC v. Return Path, Inc., 737 F.3d 1320 (Fed. Cir. 2013).
This ongoing discovery dispute stems from an order from the Court of Appeals for the Federal Circuit that reversed and remanded a district court order for summary judgment, which in turn vacated an award of costs under 28 U.S.C. § 1920(4) that included $243,453 for ediscovery. On remand, however, the district court granted summary judgment for non-infringement, and awarded costs that included over $277,000 for ediscovery. While the plaintiff moved to review the taxation award, the district court denied the motion, deeming it a “reconsideration of the Court’s previous … order affirming the taxation of the Defendant’s e-discovery costs,” and the plaintiff appealed again. Reviewing the district court’s interpretation of § 1920(4) de novo, the Federal Circuit concluded that the reading was far too broad and significantly reduced the costs awarded to the defendants. After reviewing the legislative record for the 2008 amendments to § 1920, the Federal Circuit concluded that “[t]o the extent a party is obligated to produce . . . electronic documents in a particular format with particular characteristics intact (such as metadata …), the costs to make duplicates in such a format are recoverable.” Under this standard, the court found imaging documents and metadata from source media, creating load files, and copying responsive documents to production media recoverable. However, the court notably excluded “a number of preparatory or ancillary costs” incurred before, during or after duplicating the documents, such as keyword searching, deduplication, and training document review software. Thus, the Federal Circuit reversed the district court’s fee award in part, vacated it in part, and remanded the case to fully apply the approach articulated by the Federal Circuit.