September 10, 2012 Articles

E-Discovery Costs: The Loser Pays for What, Exactly?

A very important question may be awaiting you at the end of litigation.

By Jennifer M. Williams and Tara S. Lawler – September 10, 2012

Electronic-discovery costs can be considerable. To what extent are such costs “taxable costs” that can be recovered by a prevailing party under the Federal Rules of Civil Procedure? Recent case law provides no uniform approach to taxing e-discovery costs under Rule 54(d). So the potentially very big question lurking at the end of a federal court litigation is: The loser pays for what, exactly?

E-Discovery Costs Are on the Rise

New technology and data sources, as well as the rapid rate at which existing technologies and data sources are expanding, continue to drive an unprecedented growth in the volume of information subject to discovery. Data and information that are responsive to a discovery request and that must be produced to the opposing side are not located just in an email or on a server anymore. E-discovery now encompasses mobile devices, blogs, social-media sites, instant messages, wikis, cloud computing, and other collaboration tools—to name just a few.

E-discovery costs associated with producing this ever-increasing volume of data from various sources can be staggering. To what extent might it be possible to recoup costs associated with electronically stored information (ESI) as part of a trial judgment? Federal Rule of Civil Procedure 54(d) gives the prevailing party the right to recover costs where authorized by statute; 28 U.S.C. § 1920(4) provides that “fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case” can be assessed as costs.

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