Assessing Costs in Third-Party Discovery Under F.R.C.P. 45(c)

One goal of the discovery process as articulated by the Federal Rules of Civil Procedure is to level the playing field so that no party has an undue information advantage. However, the common criticisms of litigation, namely time and expense, also can be primarily attributed to discovery. The computerized age and the move toward electronically stored information (ESI) present an additional layer of complexity to requesting and producing documents. It is increasingly common for everyday litigation to include forensic imaging of hard drives, conversion of electronic files to a word-searchable format (i.e., optical character recognition [OCR]), and web-based or other hosting of electronic discovery.