E-discovery is a costly necessity of modern litigation. With the ease of email and network data-storage came a deluge of litigation expenses. But producing parties, who historically have born the majority of these costs, may now find some relief in Rule 54(d) of the Federal Rules of Civil Procedure.
Rule 54(d) provides that “costs — other than attorney’s fees — should be allowed to the prevailing party.” The awardable or “taxable” costs are listed in 28 U.S.C. §1920, and include “[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case.” At first glance, this provision might not seem to encompass e-discovery costs. Since an amendment in 2008 that replaced the word “papers” with “any materials,” however, courts uniformly have concluded that §1920 covers at least some e-discovery costs.[FOOTNOTE 1]
The question that remains is what e-discovery costs are recoverable. Courts confronting this question have identified five elements that a party must establish to tax its adversary with e-discovery costs: (1) the party seeking costs must have been the “prevailing party”; (2) the costs must stem from a modern equivalent of “copying”; (3) the costs must have been necessary; (4) the costs must be reasonable; and (5) the costs must be sufficiently documented to support the other elements.
Although these elements provide a useful analytical framework, they provide an uncertain guide as to how courts will actually rule on requests to recover e-discovery costs. Indeed, courts frequently come to inconsistent conclusions regarding seemingly similar requests for costs. Although it remains the case that there are few bright-line rules as to what e-discovery costs are taxable, trends are beginning to emerge in how courts interpret each of these requirements.
