United States: Be Careful What You Ask for: Loser Pays Prevailing Party Electronic Discovery Costs (Again)
05 December 2011
Article by Stephanie A. Blair, Scott A. Milner, Jacquelyn A. Caridad, Denise E. Backhouse, Tara S. Lawler, Lorraine M. Casto, Graham B. Rollins and Jennifer M. Williams
Following on the heels of Race Tires II,1
which awarded electronic discovery costs in favor of the prevailing
party, several recent awards suggest that when deciding whether to
pursue litigation, parties should take into consideration the costs
of electronic discovery—and the discovery methods
used—as courts are increasingly taxing nonprevailing
parties for the costs of electronic discovery.
Recently, courts in California and Pennsylvania found that the
prevailing party can recover electronic discovery costs under
Federal Rule of Civil Procedure 54. The types of costs awarded
under Rule 54 depend upon a court's interpretation of 28 U.S.C.
§ 1920(4), which lists "fees for exemplification and the
cost of making copies of any materials where the copies are
necessarily obtained for use in the case," as taxable, or
recoverable, costs....
Specific Questions relating to this article should be addressed directly to the author.
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