The high cost of electronic discovery has triggered intense efforts at reducing that cost through technological means, such as computer-assisted document review. In addition, there is a substantial body of case law involving attempts to shift the costs of e-discovery to the requesting party where production would be “unduly burdensome.” Most recently, a new front has been opened that holds potential promise for prevailing parties who seek to recover costs.
Under 28 U.S.C. §1920(4), prevailing parties have always been able to recover “fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case.” Enterprising prevailing parties have argued that e-discovery costs are the modern equivalent of photocopying and other similar costs covered by the statute, and some courts have agreed. However, courts have been inconsistent in their rulings on the types of costs that can be recovered as exemplified in several recent cases.