Under Federal Rule of Civil Procedure 54(d)(1), the “prevailing party” in a lawsuit may recover the costs (other than attorneys’ fees) associated with litigation “unless a federal statute, [the Federal Rules of Civil Procedure], or a court order provides otherwise.” According to a study published in the Insurance Journal back in 2005 (here), the average U.S. company at any given time “balances a docket of 37 U.S. lawsuits.” Many of the lawsuits brought by and against companies require parties to exchange mountains of documents, consume gallons of toner, and produce enough copies to wipe out a small rainforest.
Needless to say, a company's victory in the courtroom will not be celebrated in the boardroom if the cost of litigation exceeds the total recovery or liability avoided. To reduce the cost of litigation and in some cases expedite the process, commercial litigants have turned to "e-discovery," which generally involves the exchange and review of information by litigants electronically over the course of litigation. For an excellent 10-minute overview of e-discovery, check out the following video:
As George Linge and David Cohen note in their recent white paper on the subject, “a growing number of court decisions indicate that a prevailing party may recover some e-discovery costs.” The two attorneys explain that, “[w]here a party requests the production of documents in an electronic format, some courts have found costs related to the technical aspects of making such a production (as distinct from the legal aspects associated with reviewing documents) to be ‘necessary’ and, therefore, taxable, rather than merely for the convenience of counsel.” See, e.g., In re Ricoh Company, Ltd. Patent Litigation, 2011 WL 5928689, *3 (Fed. Cir. 2011) (costs related to vendor’s “electronic document database” taxable, but subject to parties’ cost-sharing agreement); In re Aspartame Antitrust Litig., No. 2:06-CV- 1732-LDD, 2011 WL 4793239, at *3 (E.D. Pa. Oct. 5, 2011) ("We . . . award costs for the creation of a litigation database, storage of data, imaging hard drives, keyword searches, deduplication, data extraction and processing."). But see Race Tires America, Inc. v. Hoosier Racing Tire Corp., 2011 WL 1748620, at *8-9 (W.D. Pa. 2011), vacated by No. 11-2316 (3d Cir. Mar. 16, 2012) (limiting the prevailing party's recovery of e-discovery costs to "only the scanning of hard copy documents, the conversion of native files to TIFF, and the transfer of VHS tapes to DVD"); Rawal v. United Air Lines, Inc., No. 07 C 5561, 2012 WL 581146, at *2-4 (N.D. Ill. Feb. 22, 2012) (refusing to award electronic processing costs as taxable).
Other courts have altogether refused to allow the prevailing party to recover costs associated with e-discovery. Linge and Cohen canvass the conflicting authority on this issue as follows:
Despite its logic, the principle embodied in In re Ricoh . . . and Aspartame remains subject to conflicting case law. Some courts have found that scanning documents for use in electronic format is only for the convenience of counsel, and thus not “necessary.” See Roehrs v. Conesys, Inc., 2008 WL 755187, at *3 (N.D. Tex. Mar. 21, 2008). But see BDT Products, Inc. v. Lexmark International, Inc., 405 F.3d 415 (6th Cir. 2005) (finding electronic scanning and imaging to be necessary and therefore recompensable); Brown v. McGraw-Hill Cos., Inc., 526 F. Supp. 2d 950 (N.D. Iowa 2007) (same). And some courts have declined to assess costs related to e-discovery vendors because they are hired to “search for and retrieve discoverable … documents,” tasks which would be done by paralegals and attorneys in a non-electronic case. Klayman v. Freedom’s Watch, Inc., 2008 WL 5111293, *2 (S.D. Fla. 2008). See also Kellogg Brown & Root International, Inc. v. Altanmia Commercial Marketing Co., W.L.L., 2009 WL 1457632 (S.D. Tex. 2009). But see CBT Flint Partners, LLC v. Return Path, Inc., 676 F. Supp. 2d 1376,1381 (N.D. Ga. 2009) (calling e-vendor services “the 21st Century equivalent of making copies” and “not the type of services that attorneys or paralegals are trained for or are capable of providing”); Parrish v. Mannatt, Phelps, & Phillips, LLP, 2011 WL 1362112 (N.D. Cal. 2011); Cargill Inc. v. Progressive Dairy Solutions, Inc., 2008 WL 5135826 (E.D. Cal. 2008).
The two attorneys advise that “[d]ocumenting e-discovery costs is a critical component of any cost recovery effort and must not be overlooked as courts are unlikely to award undocumented costs." See Francisco v. Verizon South, Inc., 272 F.R.D. 436 (E.D. Va. 2011) (denying certain costs for lack of documented support); Tibble v. Edison Int’l, 2011 WL 3759927 (C.D. Calif. 2011) (supporting documents include invoices, competitive bidding papers, and evidence of market rates)."