'In Re Aspartame': Be Careful What You Ask For—You May Have To Pay For It—District Court Affirms Clerk's Broad Award Of Ediscovery Costs

Key Points

Judge Davis's opinion largely affirming the Clerk's substantial award of eDiscovery costs to the prevailing antitrust defendants extends a growing trend of federal courts willing to shift eDiscovery costs through taxation. The opinion contains the broadest and most detailed list of taxable eDiscovery services to date by a federal court and creates a useful roadmap for prevailing parties to seek eDiscovery costs. The Court's denial of certain requested costs underscores the importance of keeping detailed documentation of eDiscovery costs and services. The costs of eDiscovery continue to be a critical concern of clients and their litigation counsel. Even with cost-shifting provisions in federal and state rules, substantial eDiscovery costs continue to fall heavily on producing parties—often defendants in complex litigation—and can rise to a level that impacts both pre-trial and settlement strategy.

While not explicitly referencing this concern, a growing number of federal courts have begun to permit prevailing parties to tax the losing party for certain eDiscovery costs. Adding considerable weight to this trend, on October 5, 2011, the District Court for the Eastern District of Pennsylvania predominantly affirmed the Clerk of Court's award of substantial eDiscovery costs to the prevailing defendants. In re Aspartame Antitrust Litigation, No. 2:06-cv-01732-LDD.

Taxation of eDiscovery costs provides litigants another avenue by which to seek to shift or recover eDiscovery costs in litigation. Indeed, the award in In re Aspartame should give pause to litigants who request broad and burdensome eDiscovery without regard to the attendant costs.

Case Background

In re Aspartame involved a Bill of Costs (including eDiscovery costs) filed by defendant aspartame manufacturers following dismissal of plaintiffs' Sherman Act price-fixing class action as time-barred. In re Aspartame, 416 Fed. Appx. 208 (3d Cir. 2011). Defendants' claim for costs was based on Federal Rule of Civil Procedure 54(d)(1) which provides that "costs" be "allowed to the prevailing party" and 28 U.S.C. § 1920(2) and (4) which enumerate the kinds of "costs" (other than attorney's fees) that may be awarded under Rule 54(d)(1), including costs for "making copies of any materials where the copies are necessarily obtained for use in the case."

Defendants' application for costs was first considered by the Clerk of Court of the Eastern District. In his July 26, 2011 opinion, the...