After you celebrate your win in federal court, as the prevailing party, you will likely turn your attention to the bill of costs. In the age of electronic discovery, a large majority of your client’s costs may have been incurred to recover and produce electronically stored information. In fact, your opponent may have used e-discovery as a weapon throughout the litigation to extract a settlement.

But what if both parties knew the court could award e-discovery costs to the prevailing party? In this case, it is likely both parties would exercise restraint in making unlimited demands for ESI and willingly cooperate to minimize e-discovery costs. Or, both parties may be more apt to enter into a cost allocation agreement from the outset.

Before the advent of electronic discovery, a lawyer would review discovery requests, and either the client or the lawyer would personally gather the client’s documents in order to respond to the requests. More often than not, the client’s documents would be presented to the lawyer in paper form, and the lawyer, after reviewing the documents for privilege and responsiveness, would have the documents bates-stamped, photocopied and sent off to the other side.

Today, the process of gathering documents is far more complicated. More than 90 percent of today’s business records are electronic, as noted by David G. Reis, author of eDiscovery. In handling discovery requests, lawyers and their clients are not equipped with the knowledge or technical skill to gather electronically stored documents. The process of gathering documents is now a concerted effort between the legal and technical teams. The lawyer’s role in collecting responsive documents is now that of a project manager and involves, among other duties, identifying and interviewing document custodians, determining the kinds of electronic documents that were created, and uncovering the company’s data preservation practices to determine where potentially responsive ESI resides and is stored. Once the lawyer’s work is done, the technical team, often a skilled ESI vendor, processes the data by copying it from its original electronic format (commonly referred to as “native format”) so that the lawyer can review the documents for privilege and responsiveness.

via Recovering E-Discovery Costs as a Prevailing Party.