Today, the D.C. Circuit court issued a decision, United States ex rel. Barko, No. 19-7064, 2020 U.S. App. LEXIS 9615 (D.D.C. Mar. 27, 2020), reserving in part and affirming in part a decision of the district court to bill costs under 28 U.S.C. § 1920.

The defendant in this case, Kellogg, Brown & Root, Inc. reviewed 2.4 million pages in the Introspect electronic discovery platform. 171,000 documents were converted to tiff images and produced to Barko. Summary judgment was granted to KBR. It sought $33,000 for Introspect licensing fees; $10,000 for uploading the files to the platform; $15,000 for processing; $7,000 for deposition costs; and $5,000 for copying and printing. The district court denied a motion to reconsider the clerk's decision to tax the full bill.

The D.C. Circuit rejected KBR's position that the 2008 amendment of § 1920 allows for the recovery of both copying costs, and costs incurred in the process of making the copies - the incurred costs supposedly including hosting and processing costs. The Court noted that the Supreme Court has traditionally interpreted the statues in a "a modest way", and that § 1920 only "authorizes taxation of costs for the digital equivalent of a law-firm associate photocopying documents to be produced to opposing counsel." Id. at *9-10. KBR was only able to recover for the conversion of electronic files to the tiff format for production - a cost of only $362.41. "These tasks resemble the final stage of 'doc review' in the pre-digital age: photocopying the stack of responsive and privilege-screened documents to hand over to opposing counsel. Such costs were taxable then, and the e-discovery analogs of such costs are taxable now." Id. at *10. "[I]dentifying stacks of potentially relevant materials, culling those materials for documents containing specific keywords, screening those culled documents for potential privilege issues, Bates-stamping each screened document, and mailing discovery materials to opposing counsel" are not taxable, "whether performed by law-firm associate or algorithm." Id. at *11.

The D.C. Circuit did allow the taxation of $4,600 for binders, tab, and folders for exhibits.