N.D. California Court Declines to Follow Race Tires, Allows Taxation of e-Discovery Costs

In re Online DVD Rental Antitrust Litig., No. M 09-2029 PJH, 2012 WL 1414111 (N.D. Cal. Apr. 20, 2012)

Plaintiffs moved for review of the clerk’s taxation of costs, including those related to electronic discovery.  Noting the recent decision of the Third Circuit in Race Tires America Inc. v. Hoosier Racing Tire Corp, which narrowly interpreted 28 U.S.C. § 1920(4) and which vacated a lower court’s approval of many costs related to electronic discovery, the California court nonetheless declined to disallow the costs related to electronic discovery in this case: 

The court declines to disallow remaining costs on the grounds argued by plaintiffs (e.g., TiFF conversion costs; copying/”blowback” costs purportedly not documented; document productions purportedly not delivered; professional fees re visual aids).  Furthermore, although the court takes note of the Third Circuit’s well-reasoned opinion in Race Tires Am., Inc. v. Hoosier Racing Tire Crop., ––– F.3d ––––, 2012 WL 887593 (3d Cir. Mar.16, 2012), the court concludes that in the absence of directly analogous Ninth Circuit authority, and in view of the court’s prior order in connection with the Blockbuster subscriber plaintiffs’ motion for review of the clerk’s taxation of costs, broad construction of section 1920 with respect to electronic discovery production costs—under the facts of this case—is appropriate.  See also Taniguchi v. Kan Pacific Saipan, Ltd., 633 F.3d 1218, 1221 (9th Cir.2011) (although the court is restricted in awarding costs to the categories enumerated in § 1920, “[d]istrict courts are free to interpret the meaning of the cast of categories listed within § 1920”).

Following adjustments to the clerk’s original award to omit disallowed costs, the total award to Netflix equaled $710,194.23.