28 U.S.C. § 1920 states, in part, that a judge or clerk of any court of the United States may tax as costs the following:

(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case; (4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;

But what’s included in this statute? It’s not very clear, which is why courts before Race Tires struggled, and are still struggling even after some issues have been resolved. Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158 (3d Cir. 2012) The court in In re Text Messaging Antitrust Litigation, 2014 WL 4343286 (N.D. Ill. 2014) followed Race Tires and tried to further clarify what costs can be billed under § 1920.

Costs that can be recoverable under section 1920 include, but aren’t limited to:

  • “scanning of hard copy documents, the conversion of native files to TIFF, and the transfer of VHS tapes to DVD.”
  • Creating TIFF files
  • “each defendant is entitled to recover only the cost of one transcript for each deposition in this case, but only one-anything beyond one per defendant was a matter of convenience, not reasonable necessity.”
  • “expedited transcripts” necessary when “depositions in question came just before deadlines for experts’ reports and defendant’s summary judgment motion.”
  • “itemized invoice” for transcripts of deposition

Costs that can’t be recovered under section 1920 include, but aren’t limited to:

  • “Processing data” is not a recoverable cost, even if “essential to make a comprehensive and intelligible production” of ESI, because “that does not mean that the services leading up to the actual production constitute ‘making copies.’”
  • “quality check production documents”
  • “analyze and organize ESI in preparation for production”
  • “conduct analysis, modify, and organize ESI materials”
  • “import documents…for use by legal team”
  • “prepare…document production including images/searchable text”
  • “insuring that documents have optical character recognition (OCR), which means that their text can be read by a computer.”
  • “data processing, such as “all file native processing”
  • “Services leading up to the event of a TIFF conversion”
  • “load file creation”, which is “a file used to retrieve specific data sets or images located within legal databases through specific retrieval methods implemented in the load file.”
  • “processing of native files for purposes of production”
  • “cost of [computer] database software [such as LexisNexis]…[when] defendants failed to submit enough information about whether the software “was primarily related to counsel’s review and selection process.”
  • “tech time”
  • “data capture”
  • “master CD replication”
  • “manila folders,” “redwelds,””custom tabs,” and “binding” (because these “office supply items are not involved in the copying of materials, but rather in their packaging after the copying is already completed.”)
  • “video recordings”
  • “obtaining electronic copies of non-video recorded depositions and word indices are not recoverable to the extent they were separately charged.”

An important take-away from the decision is the fact that “services leading up to the actual production” of documents does not “constitute ‘making copies’” within the meaning of section 1920. Another take-away is that:

“The mere fact that the parties agreed to produce certain types of files does not mean that production is a recoverable cost of a prevailing party.  The Court is “limited to shifting only those costs explicitly enumerated in § 1920.” Text Messaging at *5, citing Race Tires at 170-71.

So, before you start charging clients for services under § 1920, be sure to check to see if those costs will be covered.