In In re Text Messaging Antitrust Litigation, N.D. Ill. Case No. 08-CV-7082 (Sept. 2, 2014), a number of wireless telephone companies were sued for alleged price-fixing. After prevailing on summary judgment, the companies filed a motion for more than $700,000 in costs pursuant to Fed. R. Civ. P. 54(d), which allows a prevailing litigant to recover its “costs.”
Statute and case law, however, have narrowed costs to “minor, incidental expenses.” 28 U.S.C. Sec. 1920. In particular, Sec. 1920 allows a prevailing party to recover the following:
- fees of the clerk and marshal;
- fees for printed or electronically recorded transcripts necessarily obtained for use in the case;
- fees and disbursements for printing and witnesses;
- fees for exemplification and the costs of making copies of any materials for use in the case;
- docket fees; and
- compensation of court appointed experts, interpreters, and special interpretation services.
The companies based their $700,000 request on the statutes allowance for exemplification and copying costs. Based on a 3rd Circuit case-Racing Tires America v. Hoosier Racing Tire, 674 F.3d 158 (3rd Cir. 2012), Judge Kennelly determined that the only recoverable e-Discovery costs were those necessary to convert native ESI into image files and costs to scan hard copy into electronic documents.