And by e-discovery nerds, I mean specifically John Barkett, who wrote a thoughtful piece not long ago for the DBR on whether electronic databases and the like can be taxed as costs under Section 1920(4) as the "exemplification of....materials."
In walks hotshot cyberwarrior Senior Judge King, to throw water on this exciting new way to make plaintiffs pay:
Moreover, it is the opinion of this Court that, as noted above, Congress's amendment of Section 1920(4) did not expand taxable costs beyond digital copying to the creation of new, modified, or enhanced digital files. A prevailing party may tax the costs of making digital copies, but Section 1920(4) does not state that all steps that lead up to the production of copies of materials are taxable.'' Race Tires, 674 F.3d at 169. A holding to the contrary would be "untethered from the statutory mooring,'' id , and would muddy the distinction between taxable costs, which are generally available to the prevailing party, and attorneys fees, which generally are not available under absent a fee-shifting agreement or statute.He even added some policy grounds!
John if you're reading this we'd be most appreciative of your insights on Judge King's opinion (we basically have none).