It is no secret that e-discovery costs can account for a substantial portion of a company’s costs to defend a lawsuit. According to one study, e-discovery costs alone can account for as much as 90 percent of litigation costs. Another study indicates that e-discovery costs for a typical midsize lawsuit run about $3.5 million.

With costs of this magnitude, it’s also not surprising that cost-shifting is an important subject for in-house counsel in charge of e-discovery. There are two routes defendants typically pursue to recoup e-discovery costs: via the federal rules while litigation is pending, and via 28 USC §1920 postjudgment. Regardless of the route, a defendant’s ability to recover costs may be limited. A defendant may be able to recover technical costs associated with producing electronically stored information (ESI), especially if that ESI is considered inaccessible; however, it is less likely that a defendant would be able to recover the costs associated with reviewing that ESI for privilege or relevance, which typically account for the bulk of e-discovery costs.

Cost-shifting While Litigation Is Pending

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]