By Patricia C. Collins, Esquire Reprinted with permission from the April 24, 2016 issue of The Legal Intelligencer. (c) 2016 ALM Media Properties. Further duplication without permission is prohibited

The Federal Rules of Civil Procedure regarding electronically stored information present challenging procedural and substantive issues for parties to litigation.  More practically, and, in most cases as a threshold issue, they present cost challenges for litigants.  The United States Court of Appeals for the Third Circuit recently reviewed whether the costs related to electronic discovery are taxable to the losing party under 28 U.S.C. § 1920(4) in Camesi v. University of Pittsburgh Medical Center, United States Court of Appeals for the Third Circuit No. 15-1865 (March 21, 2016). 

28 U.S.C. § 1920(4) (“Section 1920”) permits a judge or clerk of court to tax as costs the fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case.    The prevailing party would include those costs in a bill of costs and the amount would be included in the judgment or decree.  This provision is at the heart of the dispute in Camesi.    In that case, the University of Pittsburgh Medical Center (“UPMC”) prevailed in a claim under the Fair Labor Standards Act (“FLSA”).  The case involved extensive discovery after the grant of conditional certification under the FLSA.  That discovery included the conditional class’s request for electronically stored information (“ESI”).  There were multiple motions to compel and for protective orders, resulting in the entry of a consent order that stayed further discovery of ESI until the Court ruled on competing motions to certify or decertify the conditional class.