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What type of eDiscovery costs are taxable to the losing party under 28 U.S.C. § 1920(4)? For a  broad interpretation of taxation of electronic discovery costs, see Comprehensive Addition Treatment Center, Inc. v. Leslea, et al., Civil Action No. 11-cv-03417-CMA-MJW(D. Colo. February 13, 2015). After undertaking substantial electronic discovery production with a third-party vendor, Defendants sought taxable costs to Plaintiff under 28 U.S.C. § 1920(4). The trial court ordered costs amounting to approximately $57,000 to Plaintiff, who filed a motion to review the costs.

Plaintiff argued that the award of costs was inappropriate as the expenses for the third-party eDiscovery vendor were not copying costs allowable under the statute. Defendants disagreed and alleged the "production costs in collecting, scanning, reviewing, and preparing documents are necessary expenditures that are made for the purpose of advancing the discovery phase of the case and as such, are taxable."

The court noted that Defendants had hired a third-party vendor to retrieve and restore electronically stored information (ESI). Defendants had informed Plaintiff of the difficulties in responding to the ESI requests and that much of the responsive data would involve restoring 83 back-up tapes to a usable format. The court noted how Defendant kept Plaintiff apprised of needing to hire a third-party vendor and all the difficulties and complexities it was encountering for the ESI production. Despite these difficulties, Plaintiff would not agree to narrow the scope of its requests and instead, filed an Amended Complaint with additional allegations gleaned from the first ESI production requesting more ESI. Defendant produced more eDiscovery but ultimately prevailed on Summary Judgment.

The court found Defendant’s third-party ESI costs were enumerated in the statute and were not incurred merely for the convenience of the parties. Plaintiff was well aware of the high costs of this production and the costs of converting the data into usable formatting from the back-up tapes. The court found that the high costs were directly related to Plaintiffs’ “litigation choices and the aggressive course of discovery.” Plaintiff also failed to demonstrate how the costs were improper, and the court denied their motion and entered the awarded of eDiscovery costs against them.