Losers Pay Electronic Discovery Costs in Several More Cases - This is a Trend Worth Watching

As electronic discovery costs continue to grow and the complexity of litigation increases, lawyers and corporations need to pay closer attention to the document requests that they make during the discovery process. Why? Because ever since Race Tires II awarded EDiscovery costs in favor of the prevailing party, there has been an increase in the number of cases that award these types of expenses. Therefore, expected EDiscovery costs should be added to the list of things to consider before filing a case, and strong consideration should given to the methods utilized to capture and review the data. 

Focusing on crafting a reasonable discovery request and then employing the most cost effective method to analyze and control the data are key to guarding against a large bill should you lose your case. In addition, cost shifting can be prevented if the parties participate in a jointly developed review process with shared expenses. Given the sophistication of software today, it is quite easy to put up confidential walls between data in the same system.

Courts in California and Pennsylvania have recently found that the prevailing party can recovery EDiscovery costs under FRCP 54. How the court interprets 28 U.S.C. § 1920(4), with key language that states, “fees for exemplification and the cost of making copies of any materials where the copies are necessarily obtained for use in the case” is the determining factor. Recently this language has been interpreted to mean that electronic discovery costs that are related to the duplication and production of data are in fact recoverable.

Three recent cases are summarized briefly below to show the results of this recent trend. To obtain the details, you should read the full rulings. My focus is on awareness and options to help you avoid these types of situations moving forward.

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Source:  Studeo Legal

By:  Jeffrey Parkhurst