Third Circuit Court of Appeals Limits Electronic Discovery Costs That Can Be Awarded to Prevailing Party


The U.S. Court of Appeals for the Third Circuit recently addressed the question of whether production costs related to electronically stored information (ESI) are assessable to a losing party under the applicable federal statute, as “[f]ees for exemplification [or] the costs of making copies of any materials where the copies are necessarily obtained for the use in the case.” The context was an antitrust case, which was dismissed on summary judgment after extensive electronic discovery. After prevailing, the defendants sought to recover as costs approximately $365,000 to outside ESI vendors in order to collect, process, and produce ESI. The U.S. District Court for the Western District of Pennsylvania ruled that these charges were assessable against the losing party under the statute. The District Court reasoned that since the vendors’ services were indispensable and highly technical, it was appropriate to assess the cost of their work against the losing party. The plaintiff appealed this ruling to the Court of Appeals for the Third Circuit, which addressed the issue as a matter of first impression in the Circuit. The Court also noted conflicts between other Circuits that have previously addressed the issue.

The Court of Appeals rejected the District Court’s broad interpretation of the statute, and held that only two narrow categories of electronic discovery costs are assessable. The Court of Appeals ruled that “exemplification,” as used in the statute, only covered the production of illustrative evidence or the authentication of public records. Since the electronic vendors’ work in this case did neither, none of their charges were taxable on exemplification grounds. With respect to the costs of “making copies” of ESI, the Court of Appeals ruled that only the conversion of native electronic files to TIFF format and the scanning of documents to create digital duplicates should be considered assessable under the statute. In this case, scanning and duplicating costs were estimated at $30,000, which the losing plaintiff would be required to pay. The Court of Appeals held that the remaining electronic discovery costs were not assessable against the plaintiff. Accordingly, the Court of Appeals vacated the District Court’s ruling and remanded the case to the District Court to re-assess costs in accordance with this opinion.

Please see full article below for more information.

LOADING PDF: If there are any problems, click here to download the file.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Katten Muchin Rosenman LLP | Attorney Advertising

Written by:


Katten Muchin Rosenman LLP on:

Popular Topics
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.