The Changing Face of Litigation – Can the Loser Be Charged With the Other Party’s E-Discovery Costs?

While it may surprise some, the answer to that question is YES. As a result of the expanding volume of electronic data that must be produced in litigation, e-discovery costs have been one of the biggest concerns of both clients and lawyers for some time. Now, clients and lawyers alike have reason to stress about the costs even more. Recently, a federal court in the Western District of Pennsylvania held that the two prevailing defendants may recover e-discovery costs because such costs are the modern-day equivalent of duplication costs. While the judge took care to limit the ruling to the “unique” facts associated with this case, it has not stopped lawyers from speculating about what other cases might similarly fall within the purview of this ruling.

What does a ruling like this mean to businesses considering litigation? It certainly should not stop an aggrieved plaintiff from asserting its rights in courts, nor should it prevent a defendant from properly defending itself against claims. This ruling can instead be viewed as a reminder to parties in litigation that they should be cautious in how they treat discovery. For example, I recommend that my clients consider an early agreement that each party will bear its own e-discovery costs. Also, I always try to narrowly tailor my client’s discovery requests to the other party, as if the costs associated with that discovery could come out of my client’s pocket some day. Finally, I always look for appropriate opportunities to settle my client’s cases. Settlement allows the parties to avoid the risks associated with trial and gives the parties an opportunity to structure a solution that meets the needs of both parties, including a deal that addresses the payment of e-discovery costs.