Two weeks ago, the Hoosier Racing Tire Corp. and Dirt Motor Sports, Inc. filed a petition for certiorari seeking the Supreme Court's review of Hoosier Racing Tire Corp. v. Race Tires America, Inc., a case in which the Third Circuit significantly limited the scope of recoverable costs associated with the production of electronic documents during discovery (frequently referred to as "e-discovery").
As I pointed out back in March (here), the Third Circuit's narrow construction of 28 U.S.C. § 1920(4) is inconsistent with recent decisions out of the Fifth, Seventh, and Federal Circuits, respectively. Compare Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 614 F.3d 57 (3d Cir. 2010) (concluding that the Costs Statute does not permit the recovery of document processing, selection, or text-recognition costs incurred by an outside vender hired to create a searchable database of electronic documents for production); with Richo Co. v. AMI Semiconductor, 661 F.3d 1361, 1365 (Fed. Cir. 2011) (concluding that the Costs Statute extends to all “costs of producing a document electronically”); and Rundus v. City of Dall., 634 F.3d 309 (5th Cir. 2011) (affirming district court’s decision permitting the recovery of costs related to litigant’s response to the opposing party’s request for “paper documents to be converted into text-searchable electronic files”); Hecker v. Deere, 556 F.3d 575, 591 (7th Cir. 2009) (affirming district court’s award of costs related to the selection and conversion of electronic documents).
As proof of "the importance of the issue," the petitioners point out that "[t]he Third Circuit's opinion has recieved considerable attention in the three months since it was handed down." Petition for a Writ of Certiorari, Hoosier Racing Tire Corp. v. Race Tires Am., No. 11-1520, at 8 (June 14, 2012) (PDF). The petition continues:
The Third Circuit opinion creates a circuit split that has been acknowledged in the short time since its opinion issued. See Circuit Splits, A blog about cases ripe for review, http://www.circuitsplits.com/e-discovery/ (highlighting the Third Circuit opinion and the contrary opinion in Ricoh and other electronic discovery cases). This division is unlikely to be resolved without the intervention of this Court.
Id. at 18.
Tomorrow I will discuss several other reasons why the questions presented in this case may catch the Supreme Court's eye.