Electronic Discovery Costs: Loser Pays (For What?)

To what extent might it be possible to recoup costs associated with electronic discovery as part of a trial judgment? Federal Rule of Civil Procedure 54(d) gives the prevailing party the right to recover costs where authorized by statute. 28 U.S.C. § 1920(4) provides that "fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case" can be assessed as costs. Working to equate "exemplification" and "making copies" with electronic discovery processes, two courts have recently reached substantially different conclusions about the scope of what may be recovered.

Mann v. Heckler & Koch Defense, Inc.¹

In Mann, Jason Mann asserted defamation and retaliation claims against his former employer, Heckler & Koch Defense, Inc. (HKD). After succeeding in having certain claims dismissed and ultimately winning summary judgment, HKD sought to recover more than $36,000 in expenses paid to a third-party