E-discovery costs have dramatically changed the dynamics in all manner of litigation but most acutely in the putative class-action context, where the respective discovery burdens of would-be class plaintiffs and defendants are grossly asymmetrical. Class-action defendants must include this cost burden in their risk and exposure calculus — even in frivolous cases where plaintiffs have no hope of ever certifying a class. This inherent litigation cost differential, which is largely unique to putative class actions, can lead to an undeniably unjust result: cases being settled based on cost pressure, rather than the relative merits. Some courts, though — most recently the District Court for the Eastern District of Pennsylvania in Boeynaems v. LA Fitness Int’l, 285 F.R.D. 331 (E.D. Pa. 2012) — recognize these inequities and shift to class-action plaintiffs and their counsel some of the e-discovery cost burdens that ordinarily fall only on the defense. But what does it take to arrive at such a ruling?
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