Oppressive Taxation: Abuse Of Rule 54 And Section 1920 Threatens Justice

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235

OPPRESSIVE TAXATION: ABUSE OF RULE 54 AND SECTION

1920 THREATENS JUSTICE

PATRICK T.GILLEN

I. DISCOVERY AND DISCOVERY COSTS UNDER THE FEDERAL RULES 238A. The Structure of the Federal Rules ..........................................239B. The Language of the Federal Rules Relating to Discovery......240C. Recovery of the Costs Incurred to Comply with

Discovery Obligations..............................................................241D. Cost Recovery Under Rule 54(d) and 28 U.S.C.A. 1920.......243

II. COURTS

ARE

TAXING

DISCOVER

COSTS

UNDER

RULE

54

AND SECTION 1920 .........................................................................246III. NEITHER RULE 54(D)NOR 28U.S.C.A.1920AUTHORIZE

THE TAXATION OF COSTS INCURRED TO COMPLY WITHDISCOVERY OBLIGATIONS..............................................................249

A. The Structure and Language of the Federal Rules

Demonstrate That Rule 54(d) Does Not Authorize the Taxation

of Costs Incurred to Comply with Discovery Obligations. ......250B. The History and Language of 28 U.S.C.A. 1920

Demonstrate That It Does Not Authorize the Taxation of

Costs Incurred to Comply with Discovery Obligations............2521. The History of 1920 ........................................................2522. The Statutory Language.....................................................2583. Supreme Court Precedent..................................................260

IV. MISAPPLICATION OF RULE 54(D)UNDERMINES DISCOVERYAND ULTIMATELY JUSTICE ............................................................271

V. CONCLUSION...................................................................................277Of the many remarkable features contained within the Federal Rules

of Civil Procedure upon their enactment, the provisions relating todiscovery were perhaps the most significant.1 These provisionsimplemented with the goal of promoting dispute resolution on themeritscalled for a deliberate and thoroughgoing shift towards liberal

Assistant Professor of Law, Ave Maria School of Law. B.A., 1986, ProvidenceCollege; M.A., 1987, Fordham University; J.D., 1992, Notre Dame Law School; Ph.D,2004, University of Notre Dame. The author thanks Drew Scott, James W. Devine, John-Michael Thiessen, and Sal Gerbino for their assistance.

1. For a powerful and somewhat poignant description of the spirit of the rulesdescribing the limited role envisioned for pleading and the central role envisioned for

liberal discovery from a leading-light in the field of Civil Procedure, see Arthur R.Miller,McIntyre in Context: A Very Personal Perspective, 63 S.C.LAW REV.465,465-66(2012).


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236 THE WAYNE LAW REVIEW [Vol. 58: 235

discovery.2 In service of this goal, the Rules authorized methods ofdiscovery and obliged parties to comply with requests authorized by the

Rules.3As the drafters knew, the Rules increased the risk that parties would

encounter significant costs during the discovery phase of the litigation.4The Rules addressed this concern by authorizing protective orders andthe possibility of cost-shifting under Rule 26.5 Taken together, thedrafters designed the authority to engage in broad discovery (andobligation to comply) and the protection from abusive discoveryauthorized under Rule 26(c) to further the legitimate interests of theparties and the court as they move through a process that seeks the just,

speedy, and inexpensive determination of every action.

6

Despite the straightforward language of the Rules, which weredesigned to govern all aspects of discovery, including discovery costs, atroubling trend has emerged which threatens to undermine the liberaldiscovery authorized by the Federal Rules. More specifically, in the lastfew years, a growing number of federal courts have misinterpreted Rule54(d) and 28 U.S.C.A. 1920, the federal statute that authorizes thetaxation of costs contemplated by Rule 54, to allow a prevailing party totax discovery costs against a losing party.7

The problem has gone largely unnoticed. The major treatises in Civil

Procedure have noted the divergent case law.8 Practitioners have notedthe trend as an important consideration bearing on litigation tactics.9 Of

2. E.g., id. at 466.3. Id.4. See generally, Stephen N. Subrin, Fishing Expeditions Allowed: The Historical

Background of the 1938 Federal Discovery Rules, 39 B.C.L.REV. 691 (1998).5. FED.R.CIV.P.26.6. FED.R.CIV.P.1.7. As used in this article, the term discovery costs embraces costs the prevailing

party incurs to conduct discovery or comply with discovery obligations. As so defined,discovery costs exclude costs incurred for case presentation, understood as the costsincurred to secure materials used to present to the court the case (whether claim ordefense) that makes one a prevailing party within the meaning of Rule 54.

8. 10 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE 2668(3d ed., 2012) (noting only that courts have broad discretion in awarding costs and thatcircuits are divergent in awarding discovery compliance copying costs); 3-25 JAMESWILLIAM MOORE ET AL., MOORES FEDERAL PRACTICE 25.61 (2009) (discussing thatonly copies made for evidence or case presentation are taxable, with no mention of taxingcosts for discovery compliance); RUTTER GROUP PRAC. GUIDE FED. CIV. TRIALS & EV.Ch. 19.A. (2012) (noting that generally costs of discovery are not allowable, but somecourts have allowed it under the necessity requirement).

9. Mark L. Austrian, Getting Your E-Discovery Money Back, 54 DRI. FOR DEF. 12(2012) (noting emerging case law allowing taxation of discovery costs); Don Zupanec,

Electronic DiscoveryCost ShiftingCopying CostsExemplification Costs, 27 FED.


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2012] OPPRESSIVE TAXATION 237

the two more academic pieces addressing the developing trend, one hastreated it as a pragmatic reality arising from the problems presented by

discovery of electronically stored information (ESI), and the other hasembraced the result as a way to curb discovery abuses.10

The stakes are very high. For example, inRace Tires America, Inc. v.Hoosier Racing Tire Corp., a recent case out of the Third Circuit, thedistrict court taxed some $365,000 in charges under Rule 54 and 1920(4) that a party had incurred complying with discoveryobligations.11 After acknowledging the inconsistent positions that courtshave taken on the issue, the Third Circuit reversed, in part, but allowedtaxation of approximately $30,000 for scanning and file format

conversions undertaken to produce documents in discovery.

12

In In reRicoh Company, the district court taxed about $600,000 of costs incurredby the prevailing party to comply with discovery obligations.13 Theability to tax such significant costs has significant implications fordiscovery practice, which is why the practicing bar has noted the trendwith interest.

In this Article, I argue that neither Rule 54(d) nor 28 U.S.C.A. 1920 allow the taxation of discovery costs as a matter of law. In Part I, Ibriefly survey the structure and language of the Federal Rules andstatutes involved to properly frame the question of whether Rule 54 or

1920 should be seen as authorizing the taxation of discovery costs, anddemonstrate that the structure and language of the Federal Rules create acarefully crafted system which addresses costs incurred to comply withdiscovery obligations and provides for a very limited taxation of coststhat are supposed to be limited to costs incurred for presentation of thecase at the dispositive stage of the litigation. In Part II, I demonstrate thatcourts have misapplied Rule 54(d) and 1920 by interpreting both toallow the taxation of discovery and lay out the reasons courts have givenwhen reaching this erroneous result. In Part III, I demonstrate that neither

LITIGATOR 13 (2012) (noting developing case law); Lisa C. Wood & Matthew E. Miller,Awarding E-Discovery Costs to Prevailing Parties Under Rule 54(d), 26 SPGANTITRUST85 (2012); Jay E. Grenig et al., Discovery and Disclosure of Digital Information; CostShifting,1 E-DISCOVERY &DIGITAL EVIDENCE 9:2 (2011).

10. Steven C. Bennett, Are E-Discovery Costs Recoverable By A Prevailing Party?,20 ALB. L.J. SCI. & TECH. 537, 539 (2010) (noting the uncertainties surrounding thedevelopment and some of its implications for litigation strategy); Andrew Mast, Cost-Shifting in E-Discovery: Reexamining Zublake and 28 U.S.C.A. 1920, 56 WAYNE L.REV. 1825, 1844-49 (2010) (noting divergent case law and suggesting that 1920 shouldbe amended to more clearly authorize recovery of discovery costs.).

11. Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158, 159-60 (3d. Cir.

2012).12. Id. at 171-72.13. In re Ricoh Co. Patent Litig., 661 F.3d. 1361, 1364 (Fed. Cir. 2011).


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Rule 54(d) nor 1920 can be interpreted to allow the taxation of costsincurred to comply with discovery obligations. In Part IV, I show that the

misapplication of Rule 54 and 1920 threatens the liberal discoveryauthorized by the Rules, undermines the carefully crafted mechanism foraddressing discovery benefits and burdens built into the Rules, andfosters new discovery abuses. In addition, I consider two relatedproposals. The first is that 1920 be amended to explicitly authorize thetaxation of discovery costs. Second, I venture the thought that theproblem examined here provides a useful context in which to examinethe desirability of proposals to address rising discovery costs by shiftingthe costs of compliance to the party conducting discovery. I conclude

that the results of such amendments to either 1920 or to the Ruleswould be undesirable.

I.DISCOVERY AND DISCOVERY COSTS UNDER THE FEDERAL RULES

The error examined in this Part results from a failure to consider thestructure and operation of the Federal Rules as a whole in light of thecentral place that liberal discovery occupies in the litigation frameworkcreated by the Rules. The Rules Advisory Committee, referring to thelanguage ofHickman v. Taylor, states that at the most basic level, the

spirit of the rules, (as it relates to discovery) dictate that [m]utualknowledge of all the relevant facts gathered by both parties is essential toproper litigation.14

Beyond allowing for a broad search of fact, liberal discovery hasalso been credited with eliminating surprise and assisting parties in theirpreparation for trial.15 The Supreme Court has recognized the connectionbetween the liberal discovery authorized by the Federal Rules and the

14. Hickman v. Taylor, 329 U.S. 495, 507 (1947); FED. R. CIV. P. 26 advisory

committees note (1983). The 1983 amendments were prompted to detail growing abusesin the discovery system. FED. R. CIV. P. 26 advisory committees note (1983). As theCommittee explained, the spirit of the rules is violated when advocates attempt to usediscovery tools as tactical weapons rather than to expose the facts and illuminate theissues by overuse of discovery or unnecessary use of defensive weapons or evasiveresponses. Id. The amendments were thus designed to encourage district judges toidentify instances of needless discovery and to limit the use of the various discoverydevices accordingly. See id.

15. FED.R.CIV.P.26advisory committees note (1946); see also Subrin, supra note4, at697.In addition to the benefits of liberal discovery noted above, Subrin notes that itpreserves testimony in the case of death or other unavailability of a witness, diminishesthe importance of pleadings, and focuses the trial on the main points in controversy.Id.

at 716 (quoting Edson R. Sunderland, Improving the Administration of Civil Justice, in167 ANNALS OF THE AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE 60-83(1993)).


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quality of the determination fostered by the litigation process.16 The firstplace to look for an answer to the question presentedfor instance,

whether Rule 54(d) can be used to tax costs incurred to comply withdiscovery obligationsis in the language and structure of the FederalRules and statutes that address the costs of litigation. These are examinedbelow.

A. The Structure of the Federal Rules

The Federal Rules of Civil Procedure have been amended on severaloccasions to improve their overall uniformity and to group related

subjects within the titles organized by stages in the litigation process.

17

Courts have recognized that the Federal Rules and related statutes mustbe read together in light of the structure of the Rules and theirlanguage.18

The titles and rules pertinent to the problem at issue are Title V,which addresses Disclosures and Discovery, and Title VII, whichaddresses Judgment. Title V contains the basic rules governingdiscovery, and has several rules that address costs (e.g. Rule 26 and Rule

16. See FED.R.CIV.P.26advisory committees note (1946); see also Hickman,329U.S. at 507 (according deposition and discovery rules broad and liberal treatment);Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34 (1984) (supporting use of liberaldiscovery for purpose of assisting the preparation, settlement, or litigation of disputes).

17. FED. R. CIV. P. 32 advisory committees note (1970) (stating [a] beneficialbyproduct of the rearrangement is that provisions which are naturally related to oneanother are placed in one rule.); FED.R.CIV.P., Table of Rules, at Tit. IXI.

18. See, e.g., Rachal v. Ingram Corp., 795 F.2d 1210, 1214 (5th Cir. 1986) (For oursolution, we must examine Rules 9(h), 15(a), 38 and 39(a) of the Federal Rules of CivilProcedure, and the Jones Act, and apply each of them harmoniously to the case.);Theriot v. ASW Well Serv., Inc., 951 F.2d 84, 86-87 (5th Cir. 1992) (holding that Rules54, 58, and 79 must be read together); see also Silva v. City of Madison, 69 F.3d 1368,

1371 (7th Cir. 1995) (We must remember, however, that a single rule cannot be read ina vacuum. It must be read in light of the statutory commands of the federal judicial code;it also must be read in light of the structure of the entire Rules of Civil Procedure.)(citing Maybin v. Northside Correctional Ctr., 891 F.2d 72, 74 (4th Cir. 1989) (Rules ofcivil procedure must be considered in relation to one another and construed together.)(citing Nasser v. Isthmian Lines, 331 F.2d 124, 127 (2d Cir. 1964) ([I]t is essential thatwe recognize that the Rules were intended to embody a unitary concept of efficient andmeaningful judicial procedure, and that no single Rule can be considered in avacuum.))); see also Weiss v. Regal Collections, 385 F.3d 337, 342 (3d Cir. 2004) (TheFederal Rules of Civil Procedure are designed to be interdependent . . . Wheneverpossible we should harmonize the rules.); Proctor v. Educ. Credit. Mgmt. Corp., No.2:07-cv-839, 2010 WL 4919670, at *5 (S.D. Ohio Nov. 29, 2010) (FED.R.CIV.P. 2637

govern discovery and the resolution of disputes related specifically to the discoveryprocess. Thus, sanctions related to improper discovery requests or failures are governedby FED.R.CIV.P. 2637 . . . .).


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37).19 Title VII contains rules relating to Judgmentand features Rule54, which also addresses costs.20 The problem at issue here concerns how

the rules contained in each of these titles relate to one another becausecourts are using Rule 54(d), which appears in Title VII, to allow taxationof costs incurred to comply with discovery obligations created by TitleV. As explained below, the structure of the Federal Rules cuts againstany notion that the rules contained in Title VII can be used to tax costsincurred to conduct discovery or comply with discovery obligationscreated by Title V. Because this becomes clearer when the structure ofthe Rules is considered along with language of the relevant rules and thestatute that authorizes taxation of costs, it is best to turn to the Rules so

both their structure and language can be considered together.

B. The Language of the Federal Rules Relating to Discovery

Rules 26, 33, 34, and 37 contain the basic duties that govern thediscovery process, including the power the Rules confer on a party toconduct discovery, the duty to comply with discovery, and the duty tobear the costs of discovery that are laid out in Title V.21 As noted above,when taken as a whole, the Rules contained in Title V place an obligationon each party to comply with discovery requests and also require the

responding party to bear the costs of this compliance.22

Rule 26(b)describes the permissible scope of discovery requests, providing inpertinent part:

Parties may obtain discovery regarding any nonprivilegedmatter, that is relevant to any partys claim or defense including the existence, description, nature, custody, condition,and location of any documents or other tangible things and theidentity and location of persons who know of any discoverablematter . . . Relevant information need not be admissible at the

trial if the discovery appears reasonably calculated to lead to thediscovery of admissible evidence.23

19. FED.R.CIV.P.26,37.20. FED.R.CIV.P.54.

21. See FED.R.CIV.P.26,33,34,37.22. FED.R.CIV.P.26,37.23. FED.R.CIV.P.26(b)(1).


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The language of Rule 26(b) authorizes a party to employ the methodsof discovery authorized by the Rules and defines the scope of the duty to

allow discovery falling within the parameters of Rule 26(b).24The language of Rules 33 and 34, which address the methods of

discovery at the heart of the question presented by taxation of costsincurred to comply with discovery obligations, make explicit theobligation to respond to discovery requests created by Rule 26(b).25 Rule33, which specifically governs requests for interrogatories, ties theinterrogatories to Rule 26(b) and provides that the interrogatories mustbe answered.26 Subdivision (d) of Rule 33 states that where burdensomeor expensive research efforts are required, the responding party can

satisfy its duty to respond by making the records available to therequesting party, which allows the party conducting discovery to seek thedesired information by means of their own review.27

Rule 34, which governs the inspection and copying of documents,electronically stored information, and tangible items, also makes plainthe duty to comply.28 The Rule authorizes the requests, provides that aparty must respond, and provides that a party must produce documents asthey are kept in the usual course of business or grouped according to therequest for production.29 Thus, the burden posed by requests forproduction does not necessarily excuse the producing party from bearing

the cost incurred in complying with the discovery request.30

C. Recovery of the Costs Incurred to Comply with Discovery Obligations

As the notes of the advisory committee indicate, the mechanism forrecovering the costs of complying with discovery obligations is aprotective order, requested pursuant to Rule 26(c).31 This exception tothe baseline presumption of compliance was created to address thepotential abuse that can arise in the form of overbroad discovery

24. Id.25. FED.R.CIV.P. 33, 34.

26. FED.R.CIV.P.33(b)(1).27. FED.R.CIV.P.33(d).28. FED.R.CIV.P.34.29. FED.R.CIV.P.34(a)(1),(b)(2)(B), (b)(2)(E)(1).30. FED.R.CIV.P.34advisory committees note (1970) (The burden thus placed on

respondent will vary from case to case, and the courts have ample power under Rule26(c) to protect respondent against undue burden or expense, either by restricting

discovery or requiring that the party pay costs.). The committees note makes nomention of FED.R.CIV.P. 54.Id.

31. FED.R.CIV.P.26advisory committees note (1983); FED.R.CIV.P.26(c).


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requests.32 A request to shift costs may only be made in specificcircumstances, with a protective order issued at the courts discretion.33

Recent provisions for the discovery of electronically storedinformation (ESI) serve to confirm the baseline rule that each party bearsthe cost of responding to discovery requests, absent an order under Rule26(c) shifting the burden to the requesting party.34 Rule 26(b)(2)(B),creates an exception to the rule by excusing a responding partysobligation to comply where information is not reasonably accessiblebecause of undue burden or cost.35 Disputes over whether a source isreasonably accessible may be resolved by either a motion to compeldiscovery, or a motion for a protective order under the Rule.36 As

described in the committee note of 2006 to Rule 26:

The responding party has the burden as to one aspect of theinquirywhether the identified sources are not reasonablyaccessible in light of the burdens and costs required to search for,retrieve, and produce whatever responsive information may befound. The requesting party has the burden of showing that itsneed for discovery outweighs the burdens and costs of locating,retrieving, and producing the information.37

In essence, the new rules governing production of ESI create aqualified privilege that exempts a party from the baseline obligation tocomply with discovery requests authorized by the Rules or seek aprotective order. More specifically, Rule 26, as amended, gives the partya qualified privilege that relieves it of the baseline duty to comply as amatter of course (and bear the costs of compliance) where it can makethe showing required by the rule. The exception from the duty to respondwhere ESI is involved that was created by Rule 26(b)(2)(B) confirms thatthe baseline presumption created by the Federal Rules that the producingparty bears the burden of costs incurred to comply with discoveryobligations, absent an order shifting costs under Rule 26.

Taken together, the provisions described above create a sensiblediscovery regime that fosters the overall purpose of the Rules while, atthe same time, providing parties with a mechanism for securing relief in

32. See FED.R.CIV.P.26advisory committees note (1983) ([T]he spirit of the rulesis violated when advocates attempt to use discovery tools as tactical weapons . . . byoveruse of discovery.).

33. FED.R.CIV.P. 26(c).34. FED.R.CIV.P.26;FED.R.CIV.P.34advisory committees note (2006).

35. FED.R.CIV.P.26(b)(2)(B).36. Id.37. FED.R.CIV.P.26advisory committees note (2006).


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cases where the burden of complying with discovery obligations isdeemed unfair. The result is a system of liberal discovery that is

structured to facilitate the resolution of disputes on the merits, theoverarching objective of the Rules.

The provisions in Title V take into account the interest of both theparty seeking information and the party complying with discoveryobligations created by the Rules.38 The Rules obviously serve theinterests of the party seeking discovery by licensing efforts to discoverinformation relevant to the issues presented by the claims made anddefenses raised.39 As noted long ago in Hickman, [n]o longer can thetime-honored cry of [a] fishing expedition serve to preclude a party

from inquiring into the facts underlying his opponents case.

40

Instead,the requesting party is able to cast a broad net in pursuit of relevantinformation, alleviating concerns about a miscarriage of justice resultingfrom an inability to discover evidence relevant to claims made.41 At thesame time, Rule 26(c) allows the responding party to secure relief fromundue burden and expense.42

D.Cost Recovery Under Rule 54(d) and 28 U.S.C.A. 1920

The Rule at the heart of the problem examined here is Rule 54,which allows the taxation of costs.43 By its terms, Rule 54 allows for therecovery of certain costs to a prevailing party, stating that [u]nless afederal statute, these rules, or a court order provides otherwise, costsother than attorneys feesshould be allowed to the prevailing party.44In Crawford Fitting Company v. J.T. Gibbons Inc., the Supreme Courtheld that Rule 54 does not authorize the taxation of costs of its own forcebut serves only as the procedural vehicle for implementing a recovery ofcosts authorized by substantive law.45 Put another way, the SupremeCourt has recognized that taxation of costs under Rule 54 is dependent

38. FED.R.CIV.P. tit. 5.39. See, e.g.,FED.R.CIV.P. 26(b)(2)(B).40. Hickman, 329 U.S. at 507.41. Id. (Mutual knowledge of all the relevant facts gathered by both parties is

essential to proper litigation. To that end, either party may compel the other to disgorgewhatever facts he has in his possession.).

42. FED.R.CIV.P. 26(c).

43. FED.R.CIV.P. 54.44. FED.R.CIV.P.54(d).45. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-45 (1987).


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upon an underlying statutory authority for the taxation of fees andcosts.46

The statutory authorization for taxation of costs derives from 28U.S.C.A. 1920. This statute allows for the recovery of the followingtypes of costs:

(1) Fees of the clerk and marshal;

(2) Fees for printed or electronically recorded transcriptsnecessarily obtained for use in the case;

(3) Fees and disbursements for printing and witnesses;

(4) Fees for exemplification and the costs of making copies ofany materials where the copies are necessarily obtained for usein the case;

(5) Docket fees under section 1923 of this title;

(6) Compensation for court appointed experts, compensation ofinterpreters, and salaries, fees, expenses, and costs of special

interpretation services under section 1828 . . . .47

The provision of central importance is subsection four whichauthorizes the taxation of fees for exemplification and the costs ofmaking copies of any materials where the copies are necessarily obtainedfor use in the case.48 The critical question is whether the phrase copiesof any materials where the copies are necessarily obtained for use in thecase encompasses discovery costs.49

Applying the language of these subsections, courts have routinelyallowed prevailing parties to recover costs of deposition transcripts and

copies obtained by a prevailing party for the purpose of presenting to the

46. Id.47. 28 U.S.C.A. 1920 (West 2011); see also Sarah Wise, Show Me the Money! The

Recoverability of Computerized Legal Research Expenses by the Prevailing Party in the

Federal Circuits, 36CAP.U.L.REV.455,464(2007)(listing the costs recoverable under 1920 as including:

[D]eposition expenses when the transcript is received into evidence or wasotherwise reasonably necessary for trial . . . the actual cost of preparingdemonstrative evidence for trial, the costs of acquiring necessary pretrialtranscripts, fees for private process servers, and photocopying charges

necessary for trial presentation.48. 28 U.S.C.A. 1920(4).49. Id.


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court the claim or defense that results in a favorable judgment, within themeaning of Title VII of the Federal Rules, whether the judgment was

secured by means of summary judgment or jury verdict.50 Such recovery

50. See, e.g., McIlveen v. Stone Container Corp., 910 F.2d 1581, 1584 (7th Cir. 1990)(The phrase for use in the case refers to materials actually prepared for use inpresenting evidence to the court); Tchemkou v. Mukasey, 517 F.3d 506, 513 (7th Cir.2008) (the court finding that Although some copying charges undoubtedly werewarranted, it is difficult to fathom that there were over 23,000 pages of documentsnecessarily obtained for this appeal. Consequently, in the absence of adequateexplanation by counsel, we shall deny these costs.); Marmo v. Tyson Fresh Meats, Inc.457 F.3d 748, 763-64 (8th Cir. 2006) ([E]xpenses for copying papers are necessarilyobtained if the copies were received as evidence, prepared for use in presenting

evidence, or obtained for service on the other parties in the litigation and the court . . .routine copy expenses made for service, filing, or convenience of counsel are not taxableabsent prior court approval.) (quoting U.S. DIST. OF NEB., BILL OF COSTS HANDBOOK(2012)); Whitfield v. Scully, 241 F.3d 264, 271 (2d Cir. 2001) (Even more to the point,however, is the fact that the discretion to tax such a deposition is still limited by 28U.S.C. 1920, which allows taxation of costs only when the deposition was necessarilyobtained for use in the case.); Cefalu v. Village of Elk Grove, 211 F.3d 416, 428-29(7th Cir. 2000) (Among the factors that the judge might consider in evaluating thenecessity of a particular type of exemplification is whether the nature and context of theinformation being presented genuinely called for the means of illustration that the partyemployed. In other words, was the exemplification vital to the presentation of theinformation, or was it merely a convenience or, worse, an extravagance?); Cherry v.Champion Intern. Corp., 186 F.3d 442, 449 (4th Cir. 1999) (finding that a prevailingparty may not recover costs of both transcription and video recording of a witnesssdeposition because party could not show how both would be reasonably necessary insteadof just one or the other); Stearns Airport Equip. Co. v. FMC Corp., 170 F.3d 518, 536(5th Cir. 1999) (stating that it was not required that a deposition actually be introducedin evidence for it to be necessary for a case-as long as there was a reasonable expectationthat the deposition may be used for trial preparation); Disc Golf Assn, Inc. v. ChampionDiscs, Inc., 158 F.3d 1002, 1010 (9th Cir. 1998) (finding district court abused itsdiscretion in awarding copying costs for 14,000 discovery documents despite local ruleallowing such a cost to be taxed because many copies were made after the court enteredsummary judgment); Case v. Unified Sch. Dist. No. 233, Johnson Cnty., Kan., 157 F.3d

1243, 1258 (10th Cir. 1998) (affirming district courts decision to award no recoverywhen court found 71,194 copies to be grossly excessive with respect to the standard ofcopies of papers necessarily obtained for use in the case (quoting 28 U.S.C.A. 1920(4)); Herold v. Hajoca Corp., 864 F.2d 317, 322-23 (4th Cir. 1988) (finding thatcourt may tax costs of copies of depositions under 28 U.S.C.A. 1920(4) when thetranscripts may be used at trial for impeachment purposes, but are never actuallyintroduced as evidence); Sales v. Marshall, 873 F.2d 115, 120 (6th Cir. 1989)(Ordinarily, the costs of taking and transcribing depositions reasonably necessary for thelitigation are allowed to the prevailing party. Necessity is determined as of the time oftaking, and the fact that a deposition is not actually used at trial is not controlling.);Farberware Licensing Co. v. Meyer Mktg. Co., No. 09 Civ. 5270 (HB), 2009 WL5173787, at *5 (S.D.N.Y. 2009) (allowing costs in accordance with local rules under

FED. R.CIV.P. 54(d) and 28 U.S.C.A. 1920(2) for deposition transcripts reasonablyexpected . . . [to] be used at trial and not taken solely for discovery.); Adams v.Teamsters Local, 115, 678 F. Supp. 2d 314, 326 (E.D. Pa. 2007) (denying and allowing


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is proper because Rule 54 is intended to allow taxation of costs incurredto present the case that makes one a prevailing party within the meaning

of the rule (referred to herein as case presentation costs). In addition,costs incurred for case presentation are necessarily incurred for use inthe case as that term is used in 1920.51 Taxation of these casepresentation costs is in keeping with the language and purpose of bothRule 54 and 1920 as explained below.

This article is focused on the use of Rule 54 and 1920 to allow therecovery of discovery costs. As used here, the term discovery costsrefers to costs incurred by the prevailing party either to comply withdiscovery obligations created by the Rules, or conduct discovery

authorized by the Rules.

52

It is the application of Rule 54 and 1920 toallow the prevailing party to tax discovery costs that is rejected here forthe reasons explained below.

II.COURTS ARE TAXING DISCOVER COSTS UNDER RULE 54 ANDSECTION 1920

A misapplication of Rule 54(d) and 28 U.S.C.A. 1920 hasdeveloped that allows taxation of discovery costs.53 The Third, Fifth,

costs for certain depositions under FED.R.CIV.P. 54(d) and 28 U.S.C.A. 1920(2), thecourt held that depositions . . . used . . . for summary judgment are necessarily obtainedfor use in the case . . . . However, costs for depositions obtained . . . for investigatory ordiscovery purposes, which are not used or intended for use at trial may not be taxed.).

51. 28 U.S.C.A. 1920.52. It is of course true that at least some of the costs incurred for case presentation

may have been initially incurred during the discovery phase of litigation, for example,when a party secures a copy of a document that is used in the presentation of the case.But taxation of such costs is proper so long as the document is obtained for use in casepresentation precisely because it is the connection with case presentation that makestaxation proper under Rule 54 and Section 1920 for the reasons explained below.

53. Race Tires Am. Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158,171-172 (3d Cir.2012) (reversing district courts taxation of $365,000 in charges by discovery vendorsincurred to comply with discovery obligations, but holding that scanning and file formatconversion of electronic documents for the purpose of complying with discovery requestswere taxable under 1920(4)); Rundus v. City of Dallas, 634 F.3d 309, 31516 (5th Cir.2011) (affirming de novo the district courts granting of costs to prevailing party underFED.R.CIV.P. 54(d) and 28 U.S.C.A. 1920 for copies of documents made to complywith discovery obligations and reasoning that although parties must bear their own costsinitially when actually responding to discovery . . . the trial court clearly has the authorityto shift such costs at the litigations conclusion.); Hecker v. Deere & Co., 556 F.3d 575,591 (7th Cir. 2009) (affirming taxation of $164,814.43 in costs for converting computerdata into a readable format in response to plaintiffs discovery request; such costs are

recoverable under 28 U.S.C.A. 1920); BDT Prods., Inc. v. Lexmark Intl, 405 F.3d 415,420 (6th Cir. 2005) (affirming taxation of costs for electronic scanning and imaging ofdocuments under 1920(4)), abrogated by,Taniguchi v. Kan. Pac. Saipan, Ltd., No. 10-


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Sixth, Seventh, Ninth, and Eleventh Circuits have affirmed decisionstaxing costs incurred to comply with discovery obligations under Rule

54(d) and 28 U.S.C.A. 1920.54 To the same effect are decisions in theEighth and Tenth Circuits, which allow the misapplication of Rule 54(d)and 1920 to tax the costs of complying with discovery obligations inprinciple, while reviewing district court decisions, which refuse to taxcosts incurred to comply with discovery obligations under an abuse ofdiscretion standard.55

The Third Circuits recent decision in Race Tires America serves toillustrate the problem and frame the issue for analysis.56 In that case, the

1472, 2012 WL 1810216, 132 S. Ct. 1997 (2012); Jordan v. Vercoe, No. 91-1671, 966F.2d 1452, *1 (6th Cir. May 7, 1992) (holding that the district court did not abuse itsdiscretion in taxing costs under FED. R. CIV. P. 54(d) and 28 U.S.C.A. 1920, andreasoning that 1920(4) authorizes costs for photocopying of documents necessary formaintenance of the action, including . . . documents tendered to the opposing party . . ..); Illinois v. Sangamo Constr. Co., 657 F.2d 855, 867 (7th Cir. 1981) (affirming districtcourts grant of costs, including costs for the expense of copying . . . discoverydocuments tendered to defendants under FED. R. CIV. P. 54(d) and 28 U.S.C.A. 1920(4), reasoning that [t]he expense of copying materials reasonably necessary for usein the case are recoverable costs under 28 U.S.C.A. 1920(4), and finding no abuse ofdiscretion); see also, E.E.O.C. v. W&O, Inc., 213 F.3d 600, 623 (11th Cir. 2000)(affirming taxation of costs of copies made by EEOC for discovery on grounds thatcopies attributable to discovery are a category of copies recoverable under 1920(4));

In re Ricoh Co. Patent Litig., 661 F.3d 1361, 1365 (Fed. Cir. 2011) (applying NinthCircuit law and holding that [u]nder section 1920(4) exemplification and copying costsfor producing documents in discovery are recoverable.); see also Race Tires Am., Inc.,v. Hoosier Racing Tire Corp., 2:07-cv-1294, 2011 WL 1748620 (W.D. Pa. May 6, 2011),affd in part, vacated in part, remanded, 674 F.3d 158 (3d Cir. 2012) (collecting cases);Austrian, supra note 9 (noting emerging case law allowing taxation of discovery costsand collecting cases); Zupanec, supra note 9 (noting developing case law and collectingcases); Wood, supra note 9 (collecting cases); Grenig et al., supra note 9, 9:2(collecting cases).

54. See supra note 53 and accompanying text.

55. See, e.g., Marmo v. Tyson Fresh Meats, 457 F.3d 748, 762-64 (8th Cir. 2006)(upholding district courts denial of photocopying costs under FED.R.CIV.P. 54(d) and28 U.S.C.A. 1920(4) where district court local limited recovery to cases where thecopies were received as evidence, prepared for use in presenting evidence, or obtained forservice on the other parties in the litigation and the court . . . but on the grounds thatthere was no abuse of discretion); Little Rock Cardiology Clinic, P.A. v. Baptist Health,591 F.3d 591, 601-02 (8th Cir. 2009) (affirming the district courts judgment regardingcosts under FED.R.CIV.P. 54(d) and 28 U.S.C.A. 1920(4) on the grounds that the trialcourt did not abuse its discretion while noting whether such costs could be recoveredunder the Rule 54(d) or 1920(4), as a matter of law, had not been decided); Jones v.Unisys Corp., 54 F.3d 624, 633 (10th Cir. 1995) (affirming the district courts denial ofcosts for internal copying of documents . . . produced for discovery, under F ED. R.

CIV. P. 54(d) and 28 U.S.C.A. 1920(4) on the grounds that the district court did notabuse its discretion.).

56. Race Tires Am., Inc., 674 F.3d at 161-63.


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defendants retained vendors to assist with their production of ESI andafter prevailing sought to tax cost incurred to respond to discovery

requests.57 The district court taxed these costs, reasoning that thevendors services were the functional equivalent of exemplificationand making copies within the meaning of 1920, as well as anindispensable part of the discovery process. Therefore, they werenecessarily obtained for use in the case, within the meaning of1920(4).58

On appeal, the Third Circuit focused on the language of 1920(4),which allows taxation of costs incurred for exemplifications and copiesof materials where the copies are necessarily obtained for use in the

case.

59

It held that the ESI services at issue were not exemplificationsbecause the services had not resulted in illustrative evidence orauthentication of public records, so the services did not produceexemplifications even under the broadest construction of the term.60

The court then looked at whether the costs could be taxed asmaking copies of materials within the meaning of 1920(4).61 Afternoting that the language of 1920(4) had been changed in 2008 toreplace the phrase making copies of papers to the cost of makingcopies of any materials, the court held some costs incurred to producedocuments responsive to discovery requests were taxable but others

could not be taxed.62 The court broke down the vendor services relatingto ESI into services necessary to: (1) collect and preserve ESI; (2)process and index ESI; (3) keyword search ESI for responsive and thenprivileged documents; (4) converting native files to TIFF; and (5)scanning paper documents to create electronic images.63 It held that only

57. Id.58. Id. at 161-64 (noting the steps taken by vendors to comply with the plaintiffs

discovery requests, i.e.: (1) preservation and collection of ESI; (2) processing the

collected ESI; (3) keyword searching; (4) culling privileged material; (5) scanning andTIFF conversion; (6) optical character recognition conversion; and (7) conversion ofracing videos from VHS to DVD format.); Id. at 162-63 (discussing clerk and districtcourts rationale for allowing the taxation of these costs);Race Tires Am., Inc., 2011 WL1748620, at *8-11.

59. 28 U.S.C.A. 1920.60. Race Tires Am., Inc., 674 F.3d at 165-66 (noting that the Sixth Circuit applied the

narrow legal definition of exemplification as an official transcript of a public record,authenticated as a true copy for use in evidence, whereas the Seventh Circuit hadconstrued the term expansively as the act of illustration by example . . . a definitionbroad enough to include a wide variety of exhibits and demonstrative aids.).

61. Id. at 167.

62. Id. at 165 (citing Judicial Administration and Technical Amendments Act of2008, Pub. L. No. 110-406, 122 Stat. 4291).

63. Id. at 167.


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the scanning and conversion of native files to the agreed-upon formatfor production of ESI constitute making copies of materials and

consequently allowed only costs linked to that stage of the ESIproduction process to be taxed under 1920(4).64

As the Third Circuit acknowledged in Race Tires, courts allowingthe taxation of discovery costs have reached varied results on variedrationales.65 For example, the Sixth and Seventh Federal Circuits havetaken a broader view of the discovery costs that can be taxed under 1920(4) by allowing the full range of services that result in production ofdocuments responsive to discovery requests.66 But further elaboration onthe grounds for these decisions about the precise scope of discovery costs

that can be taxed under Rule 54 and 1920(4) is unnecessary becauseneither Rule 54 nor 1920 authorize the taxation of any discovery costsas a matter of law.

III.NEITHER RULE 54(D)NOR 28U.S.C.A.1920AUTHORIZE THETAXATION OF COSTS INCURRED TO COMPLY WITH DISCOVERY

OBLIGATIONS

The use of Rule 54 and 28 U.S.C.A. 1920 to allow recovery ofcosts incurred to comply with discovery obligations is completely wrong.

The structure of the Federal Rules, the language of the specific rulesgoverning discovery obligations and costs, and the language of Rule54(d) itself show that the rule cannot be used by a prevailing party to taxcosts incurred to comply with discovery obligations.67 The history andplain language of 28 U.S.C.A. 1920 show that the statute does notauthorize the taxation of discovery costs.68 The use of Rule 54 and 1920 to tax discovery costs is inconsistent with Supreme Court precedentin the area of costs,69 and contradicts a well-established line of cases thathas rejected the taxation of discovery costs incurred to conductdiscoverywhich applies to the taxation of costs used to comply with discoveryobligations just as forcefully.70

64. Id. at 171.65. Id. at 159.66. Heckler, 556 F.3d at 591; BDT Prods., Inc. v. Lexmark Intl, 405 F.3d 415, 420

(6th Cir. 2005), abrogated by, Taniguchi, 132 S. Ct. at 1997;In re Ricoh Co., 661 F.3d at1361; see also Race Tires Am., Inc., 2011 WL 1748620 (collecting cases).

67. FED.R.CIV.P.54(d).68. 28 U.S.C.A. 1920 (West 2011).

69. See, e.g., Taniguchi v. Kan. Pac. Saipan, Ltd., No. 10-1472, 2012 WL 1810216,132 S. Ct. 1997 (2012).

70. Id.


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A. The Structure and Language of the Federal Rules Demonstrate That

Rule 54(d) Does Not Authorize the Taxation of Costs Incurred to Comply

with Discovery Obligations.

The structure of the Federal Rules indicates that Rule 54 does notauthorize the taxation of costs incurred to comply with discoveryobligations. As noted above, the Federal Rules are logically divided intodistinct articles that govern specific stages of litigation.71 Title V containsprovisions relevant to Disclosures and Discovery, authorizingdiscovery, creating an obligation to comply, which includes bearingcompliance costs, and authorizing cost-shifting under Rule 26(c).72 In

contrast, Title VII contains provisions relevant to Judgment, includingRule 54, which allows a prevailing party to tax costs.73 The advisorycommittee has made the implications of this structure obvious by notingthat rules are grouped according to the subject treated.74

Allowing Rule 54(d), which is located in Title VII, to serve as avehicle for recovery of costs incurred to comply with discoveryobligations, a matter treated in Title V, is inconsistent with theoverarching structure of the Federal Rules. Unlike the provisionsaddressed to discovery (including discovery costs and costs-shifting),Rule 54(d) is found in Title VIIthe part of the Federal Rules that deals

with Judgment.75 This placement of Rule 54 shows that it is concernedwith the costs incurred to present the claim or defense that results in thefavorable judgment that makes one a prevailing party within themeaning of Rule 54. Reading Rule 54 to authorize the recovery of costsincurred to comply with discovery is inconsistent with the structure ofthe Federal Rules precisely because Title V governs discoveryobligations, including costs incurred to comply with discoveryobligations, while Title VII governs Judgment.76

The language of the Rules proper to each title also demonstrates thatRule 54 cannot be interpreted to allow taxation of costs incurred tocomply with discovery obligations. Rule 26(b) creates a duty on the partof the responding party to comply with discovery authorized by the

71. See FED.R.CIV.P., Table of Rules, at tit. I-XI.72. Id. at tit. V.73. Id. at tit. VII.74. FED. R. CIV. P. 32 advisory committees note (1970) (stating [a] beneficial

byproduct of the rearrangement is that provisions which are naturally related to one

another are placed in one rule.); FED.R.CIV.P., Table of Rules, at tit. IXI.75. FED.R.CIV.P., Table of Rules at tit. VII.76. FED.R.CIV.P tit. 5; FED.R.CIV. P. tit. 7.


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Federal Rules, including requests to produce documents, unless an ordershifting costs is entered pursuant to Rule 26(c).77

The language of Rules 33 and 34, the specific rules that can result inthe production of documents during discovery, shows that the FederalRules create an obligation to respond and require the responding party tobear the burden of compliance costs.78 Moreover, the advisory committeenotes to Rules 33 and 34 make plain that the Federal Rules obligate aparty to bear the costs of complying with discovery obligations, absentan order shifting costs under Rule 26(c).79 The notes to Rule 33recognize that interrogatories can give rise to significant compliancecosts and indicate that a party may seek cost-shifting to alleviate the

burden.

80

In pertinent part, the committee notes to Rule 34 state that[p]rotection may be afforded to claims . . . of undue burden or expenseunder what is now Rule 26(c), and later state that [t]he burden thusplaced on the respondent will vary from case to case, and the courts haveample power under Rule 26(c) to protect respondent against undueburden or expense, either by restricting discovery or requiring that thediscovering party pay costs.81

The Supreme Court recognized this baseline rule when it describedthe relationship between Rule 26(b) and Rule 26(c) in OppenheimerFund, Inc. v. Sanders, a case that dealt with allocating the costs of

notification to class members in class action litigation.82 There the Courtreviewed the structure of the Federal Rules and described the overallscheme governing discovery and discovery-related costs as follows: Thepresumption is that the responding party must bear the expense ofcomplying with discovery requests, but he may invoke the district courtsdiscretion under Rule 26(c) to grant orders protecting him from undueburden or expense in doing so, including orders conditioning discoveryon the requesting partys payment of costs of discovery.83

Oppenheimer makes plain that cost-shifting under Rule 26(c) is acourt-ordered exception to the baseline presumption created by the rules,i.e., each party bears the burden of costs incurred to comply withdiscovery obligations created by the Federal Rules.84

77. FED.R.CIV.P. 26.78. FED.R.CIV.P. 33, 34.79. FED.R.CIV.P. 33, 34 advisory committees notes (1970).80. FED.R.CIV.P. 33 advisory committees note (1970) ([T]he court is not deprived

of its usual power, in appropriate cases, to require that the interrogating party reimbursethe respondent for the expense of assembling his records and making them intelligible.).

81. See FED.R.CIV.P.34 advisory committees note (1970).

82. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978).83. Id. at 358.84. See generally,Id. at 340.


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Finally, the language of Rule 54 demonstrates that it does notauthorize the taxation of costs incurred to comply with discovery

obligations: [u]nless a federal statute, these rules, or a court orderprovides otherwise, costsother than attorneys feesshould beallowed to the prevailing party.85 Title V of the Federal Rules allocatesthe burden of costs incurred on the party that must comply with thediscovery obligations; these obligations were created by the Rules absentan order for cost-shifting under Rule 26(c) as the Supreme Courtrecognized in Oppenheimer.86 This means that the Federal Rulesprovide[] otherwise for costs incurred to comply with discoveryobligations created by the Rules, and as a result, such costs cannot be

taxed under Rule 54(d), which allows taxation of costs [u]nless . . .these rules . . . provide[] otherwise . . . .87

B. The History and Language of 28 U.S.C.A. 1920 Demonstrate That It

Does Not Authorize the Taxation of Costs Incurred to Comply with

Discovery Obligations.

1. The History of 1920

The historical origin and evolution of 1920 provide another

independent reason why the use of 1920 to tax discovery costs isfundamentally flawed. When Congress enacted the Judiciary Act of1789, it made an express and limited provision for the recovery of costsin certain cases in admiralty and equity.88 Five days later, the FirstCongress required federal courts to follow state law with respect toawarding fees and costs in suits at common law unless federal lawprovided otherwise.89 Then on March 1, 1793, Congress authorized theprevailing party to tax compensation for travel and attendance, and forattorneys and counselors fees, as allowed by the Supreme Court of theforum state.90 This statute was renewed until it expired in 1799.91

85. FED.R.CIV.P. 54(d)(1).86. Oppenheimer, 437 U.S. at 358.87. FED. R.CIV.P. 54(d)(1).88. See Judiciary Act of 1789, 20, 1 Stat. 73, 83 (allowing recovery of cost in

certain actions in equity and admiralty where the plaintiff or petitioner recovered $500 ormore).

89. Act of Sept. 29, 1789, Ch. 21, 2, 1 Stat. 93. This legislation was extended twice.Act of May 26, 1790 Ch. 13, 1 Stat.123; Act of Feb. 18, 1791, Ch. 8, 1 Stat. 191. It waslater repealed. Act of May 8, 1792, Ch. 36, 8, 1 Stat. 278.

90. Act of Mar. 1, 1793, Ch. 21-22, 4, 1 Stat. 333.91. See Act of Feb. 25, 1795, Ch. 28, 1 Stat. 419; Act of Mar. 31, 1796, Ch. 11, 1

Stat. 451.


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In 1842, Congress authorized the Supreme Court to enact rulesgoverning the taxation of costs.92 By its terms, the purpose of the act was

to further diminish the costs and expenses in suits and proceedings insaid courts.93 Although the Supreme Court did not act on thecongressional authorization, federal courts continued to follow priorpractice laid down by Congress, apparently unaware that the statutoryauthority for taxation had expired.94

Next, Congress acted with respect to taxation of costs in 1853.95 TheAct was designed to regularize practice and minimize costs.96 Thepurpose of the legislation was to relieve litigants from the burdenscreated by taxation of fees (including attorneys fees) as authorized by

state law, and it did so by prescribing a limited number of definite itemsto be allowed . . . .97 Significantly, the categories of costs taxable underthe Act in 1853 focus on mounting the claim or defense.98 Morespecifically, the Act allowed taxation of a docket fee, a fee when

judgment was rendered, fees for issuance of scire facias and otherproceedings on recognizance, and a fee for removal.99

Two provisions are of particular interest. The Act specified that thebill of fees of clerk, marshal, and attorneys, and the amount paidprinters, and witnesses, and lawful fees for exemplifications and copiesof papers necessarily obtained for use on trial in cases where by law

costs are recoverable in favor of the prevailing party, shall be taxed . . .and included in and form a portion of a judgment or decree against thelosing party.100 Further, the Act allowed taxation for each depositiontaken and admitted as evidence in the cause, an antecedent to current 1920(2).101 These two provisions, focused on exemplifications and copies

92. Act of Aug. 23, 1842, Ch. 188, 7, 5 Stat. 518.93. Id.94. See Cost in Civil Cases, 30 Fed. Cas. 1058 (No. 18, 284) (C.C.S.D.N.Y. 1852); 2

STREET, FEDERAL EQUITY PRACTICE, 1188-99 (1986); S. LAW, THE JURISDICTION ANDPOWERS OF THE UNITED STATES COURTS 271 n.1 (1852).95. See Cong. Globe, 32d Cong., 2d Sess. App. 207 (1853).96. Id. (Senator Bradbury noting that the varied practice had created a lack of

uniformity and that [i]t is not only the officers of the courts, but the suitors also, that areaffected by the present unequal, extravagant, and often oppressive system. . . . It is tocorrect the evils and remedy the defects of the present system, that the bill has beenprepared and passed by the House of Representatives. It attempts to simplify the taxationof fess, by prescribing a limited number of definite items to be allowed . . . .).

97. Id.98. Id.99. Id.

100. Act of Feb. 26, 1853, Ch. 80, 10 Stat. 161, 168 (emphasis added).101. See id. (emphasis added). As explained below, this provision is particular

significant because as an early version of the current 1920(2), it demonstrates the focus


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obtained for use at trial, and depositions admitted into evidence in thecause, show that the provisions of the Fee Act of 1853 were intended to

allow recovery of costs that attend case presentation.102An additional feature of the Fee Act was that it set the fundamental

baseline presumption that the Court has used to interpret the statute. Byits terms, the Act made plain the intent to limit taxation to these narrowcategories of costs by prefacing the listed items with the statement thatthe following and no other compensation shall be taxed and allowed.103The legislation passed in 1853 and was reiterated in the 1874revisions.104 It was included when the Judicial Code was moved to Title28 in 1926 as 830.105

The recodification of federal law in 1948 resulted in the Judiciaryand Judicial Procedures Act, which generated changes to the language ofwhat became 1920.106 The predecessor to 1920 had used the termshall in connection with taxation of costs but new 1920 used the termmay.107 The revisers notes indicate that the word may wassubstituted for shall before tax as costs, in view of Rule 54(d) of theFederal Rules of Civil Procedure, providing for allowance of costs to theprevailing party as of course unless the court otherwise directs.108

In addition, the phrasing of the statutory provision of primeimportance here, i.e., 1920(4), was changed. The predecessor of

1920, i.e., 28 U.S.C.A. 830, had provided for taxation of lawful feesfor exemplifications and copies of papers necessarily obtained for use ontrials.109 In contrast, Section 830s counterpart in the revision of 1948(i.e. 1920), allowed taxation of [f]ees for exemplifications and copiesof papers necessarily obtained for use in the case. . . .110 As noted

on case presentation that helps illuminate the limited taxation envisioned by that statutorylanguage.

102. Id.

103. Id.104. Act of 1874, 823, 18 Stat. 153. Although not at issue here, it appears that 848may provide the early provision authorizing taxation of witness fees [f]or each daysattendance in court, or before any officer pursuant to law . . . .Id. at 160.

105. 28 U.S.C. 571-72 (1926); 28 U.S.C. 830 (1926) (providing that[t]he bill of fees of the clerk, marshal, and attorney, and the amount paid printers andwitnesses, and lawful fees for exemplifications and copies of papers necessarily obtainedfor use on trials in cases where by law costs are recoverable in favor of the prevailingparty, shall be taxed . . . and be included in and form a portion of a judgment or decreeagainst the losing party.).

106. See Act of June 25, 1948, Ch. 646, 62 Stat. 955.107. 28 U.S.C. 830 (1926); 28 U.S.C. 1920 (1948).

108. H.R. 3214, 80th Cong. (1948).109. 28 U.S.C.A. 571-72 (West 1926) (emphasis added); 28 U.S.C 830 (1926).110. 28 U.S.C.A. 1920(4) (West 1948) (emphasis added).


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earlier, the revisers explained the change from shall to may as aneffort to harmonize the statutory language with the contemplated

operation of Rule 54(d).111 But this change merited no specificexplanation and, therefore, was explained with reference to the Revisersnotes after the section stating [c]hanges were made in phraseology.112

The last change in statutory language of 1920 pertinent to the issueunder examination is the change effected in 2008, which originated asSenate Bill 3569 [t]o make improvements in the operation andadministration of the Federal courts, and for other purposes.113 Thesignificant change in terms of this study is the language of 1920(4),which was authorized in 6 of the bill addressing assessment of court

technology costs.

114

On the floor of the Senate, the 2008 amendmentswere linked to the recommendations of the Judicial Conference of2003.115 And in the House, the amendment to 1920(4) was described asnoncontroversial measures proposed by the Judicial Conference toimprove the efficiency of the Federal courts.116

The change in 1920(4) to allow taxation of copies of materialsrather than papers was proposed by the Committee of CourtAdministration and Case Management of the Judicial Conference andrelated to court technology fees.117 The report indicated that thecommittee had been asked to consider whether the list of taxable costs

should be amended to include the expenses associated with new

111. Id.112. Id. For its part, the Supreme Court has acknowledged that the changes of 1948

were directed towards statutory codification noting its established view that the functionof the Revisers of the 1948 Code was generally limited to that of consolidation andcodification. Consequently, a well-established principle governing interpretation ofprovisions altered in the 1948 revisions is that no change is to be presumed unless clearlyexpressed. Alyeska Pipeline Serv. Co. v. Wilderness Socy, 421 U.S. 240, 257 n.29(1975).

113. See S. 3569 110th Cong. (2007).114. S. 3569, 110th Cong. 6 (2007).115. 154 CONG. REC. S9897-07 (daily ed. Sept. 27, 2008) (statement of Sen. Leahy

describing the bill as intended to improve the administration and efficiency of ourFederal court system by replacing antiquated processes, noting the bill containsadditional proposals that the Federal judiciary believes will improve its operations, andthanking the Administrative Office of the Courts who, on behalf of the JudicialConference, sent us policy recommendations from the Federal judiciary.).

116. 154 CONG. REC. H10270-01 (daily ed. Sept. 27, 2008) (statement of Rep. ZoeLofgren); see also id. at 06 (Comments of Rep. Smith, describing the changes asnoncontroversial administrative provisions that the Judicial Conference and the HouseJudiciary Committee believe are necessary to improve the operations of the Federal

Judiciary.).117. See JUDICIAL CONFERENCE OF THE U.S., REPORT OF THE PROCEEDINGS OF THE

JUDICIAL CONFERENCE OF THE UNITED STATES 9-10 (2003).


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courtroom technologies.118 After [c]oncluding that adding the fullrange of such costs might well go beyond the intended scope of the

statute, the committee recommended that the conference endorse twolimited amendments to 28 U.S.C.A. 1920 . . . the second to permittaxing the costs associated with copying materials whether or not theyare in paper form.119 The relevant change amended the language whichauthorized taxation of [f]ees for exemplifications and copies ofpapersnecessarily obtained for use in the case, to authorize taxation of [f]eesfor exemplification and the costs of making copies of any materialswhere the copies are necessarily obtained for use in the case.120

Seen in historical context, it is plain that the language of 1920(4),

the specific provision at the center of the problem studied here, isfocused on materials used for case presentationnot discovery.121 Thelanguage of earlier versions of Section 1920(4) made this focus on casepresentation very plain by authorizing taxation of fees forexemplifications and copies of papers necessarily obtained for use attrial.122 The change in phraseology the Revisers made in 1948 tends toobscure the statutory focus on case presentation by omitting the referenceto trial and substituting broader language that authorizes taxation of[f]ees for exemplifications and copies of papers necessarily obtained foruse in the case . . . .123

One might argue that the change in language that occurred inconnection with the recodification effort of 1947-48 was deliberatelyintended to broaden the category of taxable costs to include discoverycosts. But this position is untenable. For one thing, such a change wouldrepresent a massive expansion in taxable costs as the current case lawdemonstrates.124 Attaching such a radical significance to the change inlanguage is therefore inconsistent with the revisers characterization of

118. Id.

119. See id. at 10. The related change to 1920(2) struck the language allowingtaxation of fees of a court reporter for all or any part of the stenographic transcript toallow taxation of fees for printed or electronically recorded transcripts necessarilyobtained for use in the case. See id.

120. See 28 U.S.C. 1920(4) (1948) (emphasis added); c.f. 28 U.S.C.A. 1920(4)(West 2008) (emphasis added).

121. Id.122. 28 U.S.C. 571-72 (1926). See also 18 U.S.C. 830 (1926) (providing that

The bill of fees of the clerk, marshal, and attorney, and the amount paid printers andwitnesses, and lawful fees for exemplifications and copies of papers necessarily obtainedfor use on trials in cases where by law costs are recoverable in favor of the prevailingparty.).

123. See 28 U.S.C. 830 (1926); c.f. 28 U.S.C. 1920(4) (1948).124. Race Tires America Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158, 158 (3d Cir.

2012). SeeIn re Ricoh Co. Patent Litig., 661 F.3d 1361, 1361 (Fed. Cir. 2011).


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the change as one in phraseology and the Supreme Courts recognitionthat changes in language accompanying the 1948 revision were largely

stylistic.125Attaching such radical significance to the change in language makes

little sense for another reason. Rule 54(d) allows a prevailing party to taxcosts and provides that costs are made part of the judgment.126 Readliterally, the pre-1948 version of 1920(4), which focused upon use attrial, would exclude use in pretrial motions practice that could produce afavorable judgment (such as a motion for summary judgment and relatedhearing).127 The broader language makes plain that costs incurred forpapers used to support dispositive motions would be taxable.

Changes that the revisers made to 1923 in connection with the1948 codification effort support the view that the change in phrasingfrom use at trial, to use in the case, in 1920(4) was made withreference to motions practice and related hearings.128 Then, 1923specified certain costs that can now be taxed under 1920.129 The pre-1948 version of 1923 allowed the prevailing party to tax fees on trialbefore a jury . . . or before referees, or on a final hearing in equity oradmiralty . . . . 130 In the 1948 codification effort, the revisers modifiedthe phrasing to allow the fee to be taxed on trial or final hearing incivil, criminal, or admiralty cases . . . and explained that [t]his

simplified restatement provides for a single docket fee in each casewhich reaches final hearing or trial.131 The change that the revisersmade to 1923 broadens the focus of taxation to include a casepresentation that results in a favorable judgment by means of motions-practice and related hearing at a dispositive stage in the litigation.Reading the change in 1920(4), which also allows that broadened focuson use in connection with a trial or hearing, is both consistent with thefocus on case presentation plain in its prior version, as well as the changemade to 1923. Read this way, both Sections authorize taxation of costsincurred in connection with the case-presentation that results in a

125. See 28 U.S.C.A. 1920 (1948) (Revisers Note); see also Alyeska, 421 U.S. at257 n.29 (noting the Courts established view that the function of the Revisers of the1948 Code was generally limited to that of consolidation and codification. Consequently,a well-established principle governing the interpretation of provisions altered in the 1948revision is that no change is to be presumed unless clearly expressed.) (internalquotations and citations omitted).

126. FED.R.CIV.P. 54(d).127. 28 U.S.C. 830 (1926).128. 28 U.S.C. 1920(4) (1948).

129. See 28 U.S.C. 1923 (1948); c.f. 28 U.S.C. 1920(4) (1948).130. 28 U.S.C. 1923 (1948) (Revisers Note) (emphasis added).131. See 28 U.S.C. 1923 (1948) (Revisers Notes) (emphasis added).


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favorable judgment at trial or a hearing. In sum, the historical origin andfocus of 1920 demonstrate that it is intended to allow recovery of costs

incurred to secure a favorable judgment via case presentation, notdiscovery costs.

2. The Statutory Language

The plain language of current 1920 likewise shows that the Sectionis designed to authorize taxation of costs incurred for case presentation,not discovery costs, quite apart from its historical origin anddevelopment.132 When the categories of costs made taxable under 1920

are taken as a whole, it becomes evident that they are tied to securing thefavorable judgment that allows taxation under Rule 54. The listed costsare a small subset of costs a prevailing party necessarily incurs to presentthe claim or defense which results in a favorable judgment that makesone a prevailing party within the meaning of Rule 54.133

Each category of costs listed is a necessary step in presenting theclaim or defense that results in a favorable judgment.134 Subsection oneallows recovery of fees of clerk and services of the marshal which relateto filing and service.135 Subsection five authorizes the recovery ofdocketing fees under 1923, which itself authorizes nominal fees to

attorneys and proctors on trial or final hearing (including a defaultjudgment whether entered by the court or by the clerk).136 Fees forprinting relate to presenting the case via pleadings or other papers.137Subdivisions two and three likewise focus on case presentation byallowing the taxation of transcripts or witness fees needed to presenttestimonial evidence.138 Subsection six focuses on case presentation viacourt appointed experts (designed to assist the court resolve the merits oftechnical matters) or interpreters, a term the Supreme Court has held tobe focused upon, and limited to, oral translation of witness testimony.139

132. 28 U.S.C. 1920.133. See 28 U.S.C.A. 1920; see also Beecham v. U.S., 511 U.S. 368, 371 (1994)

(noting [t]hat several items in a list share an attribute counsels in favor of interpretingthe other items as possessing that attribute as well.).

134. Id.135. 28 U.S.C.A. 1920(1), (5).136. See 28 U.S.C.A. 1920(5), 1923(a) (emphasis added).137. See 28 U.S.C.A. 1920(3).138. See 28 U.S.C.A. 1920(2), 1920(3).139. See 28 U.S.C.A. 1920(6); see also Taniguchi v. Kan. Pac. Saipan, Ltd., No. 10-

1472, 2012 WL 1810216, 132 S. Ct. 1997 (2012) (holding that 1920(6) did notauthorize the taxation of costs incurred to translate written documents and medicalrecords from Japanese to English).


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The specific language of 1920(4), the provision at the heart of theproblem studied here, shares this focus on case presentation.140 For one

thing, the subsection allows the taxation of costs incurred forexemplification and cost of making copies . . . necessarily obtained foruse in the case.141 An exemplification is an official transcript of adocument from public records, made in a form to be used as evidence,and authenticated or certified as a true copy.142 By its terms then 1920(4) demonstrates it is focused on securing admissible evidence to beused in case presentation.

Section 1920(4) also allows taxation of costs of making copies . . .where the copies are necessarily obtained for use in the case.143

Although this phrase could be interpreted broadly, such an interpretationwould be mistaken. For one thing, when the phrase making copiesmust be seen in the context created by its grouping withexemplifications it is plain that the use in the case contemplated by 1920(4) is use for case presentation.144

For another, the larger context created by the Federal Rules providesfurther context for the proper understanding of how to interpret thephrase making copies . . . necessarily obtained for use in the case.145The idea that taxation under 1920 is tied to the presentation of the case(claim or defense) that results in a favorable judgment making one a

prevailing party within the meaning of Rule 54 is in harmony with thestructure of the Federal Rules. The idea that the phrase authorizes therecovery of discovery costs does not. Consequently, the phrase makingcopies should not be construed to move beyond the focus on casepresentation evident when the categories described in the Section aretaken as a whole.146

140. 28 U.S.C.A. 1920(4).

141. Id.142. BLACKS LAW DICTIONARY 593 (7th ed. 1999); see also, Kohus v. Toys R Us,Inc., 282 F.3d 1355, 1358-60 (Fed. Cir. 2002) (Federal Circuit predicting Sixth Circuitwould use the legal definition of exemplification to interpret the term as it appears in 1920(4) and reject the broader view of exemplification as illustration adopted by theSeventh Circuit in Cefalu v. Vill. of Elk Grove, 211 F.3d 416, 427 (7th Cir. 2000)).

143. 28 U.S.C.A. 1920(4).144. Id.145. Id.146. Id. Davis v. Mich. Dept of Treas., 489 U.S. 803, 809 (1989) (noting the

fundamental canon of statutory construction that the words of a statute . . . be read intheir context and with a view to their place in the overall statutory scheme.); United Sav.

Assn v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371 (1988) (Statutoryconstruction . . . is a holistic endeavor. A provision that may seem ambiguous in isolationis often clarified by the remainder of the statutory schemebecause . . . only one of the


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By specifying that the costs incurred to secure materials can only betaxed if necessarily obtained for use in the case, the statutory language

shows that Congress did not intend to authorize recovery of discoverycosts.147 Rather, 1920 authorizes a narrow recovery of only a specificsubset of costs incurred to copy materials needed to present the claim ordefense that results in the favorable judgment which makes one aprevailing party within the meaning of Rule 54.148 So read, Rule 54(d)and 1920(4) dovetail with the larger structure of the Federal Rules asoutlined above.149

3. Supreme Court Precedent

Although the Supreme Court has not yet examined the question atissue here, the broad reading of 1920(4) to allow the taxation ofdiscovery costs is inconsistent with precedent concerning taxation ofcosts in which the Court has repeatedly taken a narrow view of thetaxation authorized by Congress.150 For example, the Supreme Courtsfirst comprehensive look at costs wasAlyeska Pipeline, where the narrowquestion presented was whether federal courts could award attorneysfees as costs in the absence of express statutory authority.151 The Courttreated attorneys fees and other costs together, noting that [a]t common

law, costs were not allowed; but for centuries in England there has beenstatutory authorization to award costs, including attorneys fees.152 TheCourt also recognized that the English precedent provided the basis forAmericas common law rule barring taxation of costs, includingattorneys fees, absent statutory authorization.153 In the end the Court

permissible meanings produces a substantive effect that is compatible with the rest of thelaw.).

147. 28 U.S.C.A. 1920(4).148. Id.

149. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987)(rejecting a reading of Rule 54 that would create a conflict with 1920 based on duty toconstrue federal rules and statutes inpari materia).

150. Alyeska, 421 U.S. at 241.151. Id.152. Id. at 246.153. Id. at 249 (noting early Supreme Court precedent indicated that the award of

attorneys fees as costs was contrary to general practice in the United States). The Courtalso reversed the lower courts award of attorneys fees based on the inherent power ofthe court and noted that:

In the United States, the prevailing litigant is ordinarily not entitled to collect areasonable attorneys fee from the loser. We are asked to fashion a far-reaching

exception to this American Rule; but having considered its origin anddevelopment, we are convinced that it would be inappropriate for the Judiciary,without legislative guidance, to reallocate the burdens of litigation in the


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refused to depart from its longstanding American Rule based in part onits recognition that the statutory authorization for recovery of costs was

meant to be an exclusive listing.154In Crawford Fitting, the Supreme Court addressed the scope of Rule

54(d) and recovery authorized by 1920.155 The narrow questionpresented was whether courts possessed authority to tax expert fees ascosts under either the rule or statute.156 As an initial matter, the Courtheld that Rule 54 did not authorize the taxation of fees of its own forcebut depends upon underlying statutory authority for the taxation of feesand costs. Quite to the contrary, Rule 54 served to give courts thediscretion to decline to tax costs.157

The Court then turned to 1920. After noting that the purpose of theFee Act was to address oppressive taxation of costs, it concluded that[t]he comprehensive scope of the Act and the particularity with which itwas drafted demonstrate[] . . . that Congress meant to impose rigidcontrols on cost-shifting in federal courts.158 Consequently, the Courtheld that 1920 did not provide any compensation for witness fees otherthan that authorized by 1920(3), which allows taxation of witness feesas authorized by 1821.159

More recently in Taniguchi, the Supreme Court once again took anarrow view of the costs made taxable under 1920.160 In that case, the

question presented was whether 1920(6) authorized taxation of costsincurred to translate written documents (medical records) from Japaneseto English.161 Section 1920(6) authorizes the compensation ofinterpreters, and salaries, fees, expenses and costs of specialinterpretation services.162 The prevailing party argued that costsincurred to translate documents were taxable under 1920(6) becauseone definition of interpreter is one who translates, an argument the Ninth

manner and to the extent urged by respondents and approved by the Court of

Appeals.Id. at 247.154. Id. at 260 (noting that Congress has not . . . retracted, repealed, or modified the

limitation on taxable fees contained in the 1853 statute and its successors.); id. at 269-71(refusing to overturn American Rule barring recovery of attorneys fees as costs absentstatutory authority).

155. Crawford Fitting Co., 482 U.S. at 438.156. Id. at 438.157. Id.158. Id. at 444.159. See 28 U.S.C.A. 1920(3) (West 2011) (authorizing taxation of witness fees); 28

U.S.C.A. 1821 (West 2011) (requiring payment of witness fees).

160. See Taniguchi, 132 S. Ct. at1997.161. Id.162. See 28 U.S.C.A. 1920(6).


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Circuit accepted reasoning that 1920 should be interpreted broadly inlight of the presumption in favor of taxation created by Rule 54(d).163

The Court rejected the argument, holding that the ordinary meaning ofinterpreter was one who engaged in oral translation.164

The Taniguchi Court made three additional points relevant to theproblem examined here. First, it rejected the broad definition ofinterpreter to include one who translates in writing with reference torelated statutory sections because the underlying statute which hadamended 1920 to authorize taxation of costs incurred for interpretingwas focused on oral translation in judicial proceedings.165 Second, theCourt rejected the Ninth Circuits view that the term interpreter as used

in 1920(6) should be construed broadly because Rule 54(d) created apresumption in favor of taxation of costs by noting that its decision inCrawford Fitting undercut any idea that Rule 54(d) added anything to thecategories of costs made taxable by 1920.166 Finally, the Courtemphasized that taxable costs are limited to relatively minor, incidentalexpenses as is evident from 1920, and also, that [t]axable costs are afraction of the nontaxable expenses borne by litigants as further supportfor its holding that the term interpreter should not be read broadly toinclude translation understood as a larger group of costs.167

In sum, the Supreme Court has consistently taken a narrow view of

taxation under Rule 54(d) and 1920. Accordingly, the Courtsprecedent regarding Rule 54 and 1920 create a strong presumptionagainst an interpretation of 1920 which would allow taxation ofdiscovery costs when taken as a whole.168

163. See Taniguchi, 132 S. Ct. at 2005-26.164. Id. at 2007 (holding that [b]ecause the ordinary meaning of interpreter is

someone who translates orally from one language to another, we hold that the categorycompensation of interpreters in 1920(6) does not include costs for document

translation.).165. See id. at 2004 (noting that use of term interpreter consistently appeared inconnection with oral translation, e.g., in judicial proceedings . . . in any criminal or civilaction . . . if a party or witness speaks only or primarily a language other than the Englishlanguage . . . so as to inhibit such witness comprehension of questions and thepresentation of such testimony . . . [or specifying that translation] shall be in thesimultaneous mode for any party . . . and in consecutive mode for witnesses, unless thecourt directs otherwise.) (internal quotations and citations omitted).

166. Id. at 2005-06 (noting the Court of Appeals reasoned that a broader meaning ismore compatible with Rule 54 . . . which includes a decided preference for the award ofcosts to the prevailing party . . . . To the contrary, we have made clear that the discretiongranted by Rule 54(d) is not a power to evade the specific categories of costs set forth by

Congress.) (citations omitted) (internal quotation marks omitted).167. Id. at 2006.168. See id. at 2006.


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For the reasons previously explained, the use of Rule 54(d) and 1920(4) to tax discovery costs is wrong on all counts. Yet the misuse of

Rule 54(d) and 1920(4) to allow taxation of recovery costs is common.Why? Here again the decision inRace Tires provides a useful vehicle todiscuss the larger problem.169

Simply put, courts allowing taxation of discovery costs under Rule54(d) and 1920 have lost sight of the forest for the trees. Race Tires isillustrative of the fundamental flaws running through the case lawallowing taxation of discovery costs.170 Addressing the question ofwhether discovery costs are taxable, the Third Circuit jumps right fromRule 54 to 1920.171 In so doing it wholly neglects the significance of

the structure created by the Rules with its treatment of discovery costsunder Title V of the Rules and the placement of Rule 54 in Title VIIwhich deals with judgment. The court also ignores the language of Rule54, which bars taxation where the Rules provide for costs itself.172

There is a certain irony here. In Crawford Fitting, the Courtemphatically rejected the view that Rule 54 authorizedtaxation of costsof its own force.173 The holding in Crawford Fitting has become thestarting premise of costs analysis under Rule 54. But the myopic focuson Crawfords holding has led courts to totally ignore the structure of theFederal Rules and the language of Rule 54.174 Consequently, courts fail

to see that Rule 54 does prohibittaxation of costs by its terms when itcomes to discovery costs.175

Courts allowing the taxation of discovery costs under 1920 alsomisinterpret the statute for the reasons given above. Again there is ironythat arises from the way courts have interpreted necessarily obtained foruse in the case, as that phrase appears in 1920(2), (4).176 The districtcourts decision in Race Tires is illustrative of the fact that courtsallowing the taxation of discovery costs under 1920(4) reason thatbecause complying with discovery obligations is a necessary part oflitigation, costs incurred to make copies used to comply with discovery

169. See generally Race Tires Am., Inc., 674 F.3d at 158.170. Id. at 160.171. Id. at 163-64.172. See FED.R.CIV.P. 54.173. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987).

174. See FED.R.CIV.P. 54.175. See 28 U.S.C.A. 1920(6) (West 2011).176. 28 U.S.C.A. 1920(2), (4).


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obligations are costs of copies necessarily obtained for use in the case,within the meaning of 1920(4).177

But such a broad reading of necessarily obtained for use in thecase is inconsistent with the vast weight of case law applying that exactsame statutory phrase with respect to efforts to tax discovery costs that aprevailing party incurred to conductdiscovery.178 In that context, courtshave consistently recognized the focus on case presentation required byRule 54 and 1920, and have held that discovery costs incurred toconductdiscovery are not necessarily obtained for use in the case.179 In

177. See, e.g., Race Tires Am., Inc., v. Hoosier Racing Tire Corp., 2:07-cv-1294, 2011

WL 1748620, at *6-10 (W.D. Pa. May 6, 2011) (collecting cases allowing taxation of ESIcosts incurred in connection with discovery).

178. 28 U.S.C.A. 1920(2), (4).179. See, e.g., Pan. Am. Grain Mfg. Co. v. Puerto Rico Ports Auth., 193 F.R.D. 26, 29

32, 38 (D.P.R. 2000) (denying portion of costs for copies under FED.R.CIV.P. 54(d) and28 U.S.C.A. 1920(4), allowing costs for only one set of documents tendered to the courtand stating [I]f a deposition is not introduced into evidence or used at trial . . . thedetermining factor is whether the deposition reasonably seemed necessary at the time itwas taken.); Paul N. Howard Co. v. Puerto Rico Aqueduct & Sewer Auth ., 110 F.R.D.78, 8188 (D.P.R. 1986) (denying costs for transcripts, depositions, and miscellaneousexpenses under FED. R. CIV. P. 54(d) and 28 U.S.C.A. 1920(2),(4); holding thattranscripts must be essential to counsel for an effective performance and proper handlingof the case, and [c]osts which are incidental to or incurred in preparation for trial arenot considered necessarily incurred for use in the case pursuant to section 1920.); Dentev. Riddell, Inc., No. CA77-3000-T, 1982 U.S. Dist. LEXIS 14157, at *78 (D. Mass.Aug. 9, 1982) (denying cost for copies under FED. R. CIV. P. 54(d) and 28 U.S.C.A. 1920(4) because prevailing party failed to demonstrate that the photocopies werereasonably necessary for presentation of [the] case.); Emerson v. Natl Cylinder GasCo., 147 F. Supp. 543, 54445 (D. Mass. 1957) (rejecting a portion of prevailing partyscosts under FED. R. CIV. P. 54(d) and 28 U.S.C.A. 1920(2), noting that depositionstaken as discovery or preparation rather than for use at the trial were not taxable asmere preparation costs.), abrogation recognized by,Summit Tech., Inc. v. Nidek, Co.435 F.3d 1371 (Fed. Cir. 2006); Farberware Licensing Co. v. Meyer Mktg. Co., No. 09

Civ. 2570(HB), 2009 WL 5173787, at *5 (S.D. N.Y. 2009) (allowing costs in accordancewith local rules under Fed. R. Civ. P. 54(d) and 28 U.S.C.A. 1920(2) for depositiontranscripts reasonably expected . . . [to] be used at trial and not taken solely fordiscovery.); S.R. Galves Participacao, Importacao & Exportacao Ltda. v. Natur

Oppressive Taxation: Abuse Of Rule 54 And Section 1920 Threatens Justice

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