Abstract
Rule 54(d) of the Federal Rules of Civil Procedure gives the district courts discretion to award the prevailing party its litigation costs (other than attorney’s fees) to the extent permitted by 28 U.S.C. § 1920 (“Section 1920”). The amounts involved are sometimes modest, and always a fraction of total litigation expenses, causing courts to candidly acknowledge the mismatch between the two. The disparity can be especially pronounced in cases involving e-discovery because courts typically construe the words “making copies” in Section 1920(4) very narrowly and allow recovery for only those e-discovery activities that are analogous to photocopying paper documents. This makes pyrrhic victory the norm, given the probability that the expense of collecting, processing, and producing electronically stored information (“ESI”) will erode the fruits of victory. Even courts that authorize modest recoveries based on a narrow construction of the relevant statutory language recognize that “there may be strong policy reasons in general, or compelling equitable circumstances in a particular case, to award the full cost of electronic discovery to the prevailing party . . . .” For these courts, however, broader cost shifting must await further guidance from Congress. The unfortunate upshot is that prevailing parties—who often must collect, process, and produce vast quantities of electronic documents using expensive processes that make fact-finding more manageable—recover less for their efforts than their counterparts in an earlier, pre-digital era. Put simply, the joy of victory is quickly muted when the prevailing party learns it can recover only pennies on the dollar for its e-discovery outlays.
Last Page
347
Recommended Citation
Matthew Reiber,
Cost Shifting for E-Discovery: A Suggested Reform,
30
Rich. J.L. & Tech
274
(2024).
Available at:
https://scholarship.richmond.edu/jolt/vol30/iss2/1