2011 witnessed the democratization of e-discovery as new judicial voices emerged across the country.
It has been five years since the 2006 e-discovery amendments to the Federal Rules of Civil Procedure became law, and in the interim, more than half of the U.S. states have adopted some form of electronic data discovery rulemaking. Case law has rapidly evolved from the humble pronouncements of just a few technology-savvy federal judges. During 2011, we saw more opinions at the state court level and heard recommendations from EDD special masters. But even with the tremendous development of case law, some concerns haven't changed, including worries about the difficulty of effectively managing the ever-increasing volume of data and controlling the escalating costs of preservation.
POST-LITIGATION COST RECOVERY. Last year saw a significant rise in the number of published opinions related to the reimbursement of a prevailing party's EDD costs. See Fed. R. Civ. P. 54(d). This increased activity may be attributable to an EDD-friendly 2008 amendment to the federal cost-recovery statute that changed the phrase "fees for exemplifications of copies of papers" to "fees for exemplification and the costs of making copies of any materials." See 28 U.S.C. § 1920(4).
As a result, some courts have defined "copying" and "exemplification" to focus on the physical preparation and duplication of data, whether by copying paper or scanning electronic documents. See Francisco v. Verizon South, Inc., 272 F.R.D. 436 (E.D. Va. Mar. 2, 2011), rejecting requests for costs where methods employed in the case went beyond scanning.
Still other courts have defined the terms broadly to include data processing and production. For example, in Race Tires America, Inc. v. Hoosier Racing Tire Corp., 2:07-cv-1294 (W.D. Pa. May 6, 2011), Pittsburgh, Pa.-based U.S. District Court Judge Terrence McVerry granted defendant's motion to recover more than $367,000 in EDD processing costs, finding such costs are "the 21st century equivalent of making copies." McVerry noted in his decision that the parties had agreed that responsive documents would be produced electronically.
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By: Cecil Lynn III