This is Part 5 of a multipart blog series on cost recovery.
Following Race Tires in the Third Circuit, a number of other appellate courts took up the issue.
The Fourth Circuit considered cost recovery in Country Vintner of NC, LLC v. E. & J. Gallo Winery, Inc., 718 F.3d 249 (4th Cir. 2013) and reached the same conclusion as the Third regarding the narrow scope of 28 U.S.C. § 1920(4), although it did outline two additional potential avenues for recovery.
The Sixth Circuit Court took a slightly expanded view of “making copies” in Colosi v. Jones Lang Lasalle Am.s, Inc., 781 F.3d 293 (6th Cir. 2015), allowing the inclusion of the costs of imaging hard drives, as long as that was the only avenue permitting review of the files.
In In re Online DVD Rental Antitrust Litig. (Resnick v. Netflix, Inc.), 779 F. 3d 914 (9th Cir. 2015), the Ninth Circuit found the reasoning in Race Tires to be persuasive and reversed a number of costs that had been originally awarded by the lower court.
For a more complete discussion of cost recovery decisions in the appellate courts, click here to download the Modus/Reed Smith white paper Pursuing eDiscovery Cost Recovery.