Oppressive Taxation: Abuse of Rule 54 and Section 1920 Threatens Justice
Patrick T. Gillen
Ave Maria School of Law
October 4, 2012
The author argues that neither Rule 54(d) nor 28 U.S.C. §1920 allow the taxation of discovery costs as a matter of law. He briefly surveys the structure and language of the Federal Rules and statutes involved and demonstrates that the structure and language of the Federal Rules create a carefully crafted system which provides for a very limited taxation of costs that should be limited to costs incurred for presentation of the case at the dispositive stage of the litigation. He goes on to demonstrate that courts have misapplied Rule 54(d) and §1920 by interpreting both to allow the taxation of discovery and lays out the reasons courts have given when reaching this erroneous result. He shows that the misapplication of Rule 54 and §1920 threatens the liberal discovery authorized by the rules, undermines the carefully crafted mechanism for addressing discovery benefits and burdens built into the rules, and fosters new discovery abuses. He concludes by considering two related proposals and discerns that the results of such amendments to either §1920 or to the Rules would be undesirable.
Number of Pages in PDF File: 48
Keywords: taxation, Rule 54, discovery, litigation costsworking papers series
Date posted: October 9, 2012
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