"Making Copies" — Third Circuit Substantially Curbs Race Tires eDiscovery Award

Key Points

• The Third Circuit narrowly construed §1920(4) to permit taxation of eDiscovery costs for "making copies" of electronic documents, such as costs to scan paper documents into electronic format or to convert electronic documents into TIFF image format.
• The Court rejected using §1920(4) to shift the cost of broader eDiscovery expenses to the losing party, and held that it was improper for a court applying the statute to consider a litigant's conduct in discovery or the technical expertise required to produce electronic documents.
• The Court emphasized that broader eDiscovery costs can be shifted to other parties through a protective order under Federal Rule 26(c), a targeted cost-sharing agreement between parties, or through a request for sanctions in response to conduct alleged to be in bad faith.