In CBT Flint Partners, LLC v. Return Path, Inc., et. al., 2009 WL 5159761 (N.D. Ga. Dec. 30, 2009), District Court Judge Thomas W. Thrash overruled plaintiff's objections to defendants' motion to tax costs related to its e-discovery vendor.

Plaintiff owned patents related to a method for filtering unsolicited and unwanted email, or "spam."   Plaintiff sued defendants' alleging that the defendants' own "Bonded Sender Program" infringed on plaintiff's patents. The court granted defendants' motion for summary judgment finding a typographical error in one of plaintiff's patents invalidated its purported claims.

Plaintiff objected to defendants' motion to tax costs related to its e-discovery vendor arguing that the $243,453.02 in incurred fees was not taxable under 28 U.S.C. § 1920.  The court noted that there is a division of opinion as to whether these costs are recoverable under 28 U.S.C. § 1920 , citing Kellogg Brown & Root Intern., Inc. v. Altanmia Commercial Marketing Co., 2009 WL 1457632 (S.D.Tex. May 26, 2009).   Some courts have allowed these costs as being the modern day equivalent of "exemplification and copies"  while other  courts have maintained that assembling records for production is  ordinarily a task done by attorneys and paralegals and is not a recoverable cost.

Here, the court found defendants' production of 1.4 million documents plus 6 versions of source code in paper form would have cost far more than the fees sought for the e-discovery consultant.  Moreover, according to the court, the services provided by the e-discovery consultant were highly technical and not the types of services performed by attorneys or paralegals.  Therefore, the court overruled plaintiff's objections and ruled defendants' e-discovery efforts were "the 21st Century equivalent of making copies ... [and] ...certainly necessary in the electronic age."  The court continued, "[t]he enormous burden and expense of electronic discovery are well known. Taxation of these costs will encourage litigants to exercise restraint in burdening the opposing party with the huge cost of unlimited demands for electronic discovery."