Recovery Of E-Discovery Costs: A Vital Consideration From Beginning To End

The costs of electronic discovery have traditionally been borne by the producing party. Even a defendant found free of liability could still be stuck with the bill for these costs. But a growing number of court decisions indicate that a prevailing party may recover some e-discovery costs. Understanding the potential for recovering these costs not only may enable a defendant to avoid a Pyrrhic victory at the end of a case, but also will empower a defendant to set reasonable limits on the scope of discovery at the beginning.

The starting point for recovering e-discovery costs is Fed. R. Civ. P. 54(d)(1), which states that "unless a federal statute, these rules, or a court order provides otherwise, costs – other than attorney's fees – should be allowed to the prevailing party." These costs include "fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case." 28 U.S.C.A. § 1920(4). The critical determination, then, is whether e-discovery costs are "necessary."

Where a party requests the production of documents in an electronic format, some courts have...