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The question of e-discovery-related cost-shifting typically arises in two settings: (1) when a party seeks to shift the cost of electronically stored information production during litigation to the requesting party pursuant to Fed.R.Civ. P. 26(b)(2)(B); and (2) when a prevailing party seeks to recover its costs after judgment has been entered in its favor pursuant to Fed.R.Civ.P. 54(d). This article will discuss both scenarios as they have been addressed in two recent cases – Boeynaems v. LA Fitness Int’l, 2012 U.S. Dist. LEXIS 115272 (E.D. Pa., Aug. 16, 2012), a decision involving cost-shifting prior to class action certification, and Race Tires America v. Hoosier Racing Tire, 674 F.3d 158 (3d Cir. 2012), in which the U.S. Court of Appeals for the Third Circuit addressed applications to recover e-discovery-related costs under 28 U.S.C. §1920.

Cost-Shifting Prior to Class Certification

While there is substantial precedent regarding cost-shifting during active litigations pursuant to Fed.R.Civ.P. 26(b)(2)(B), the U.S. District Court for the Eastern District of Pennsylvania’s decision in Boeynaems is noteworthy because it appears to be the first decision in which e-discovery costs have been shifted prior to class certification on the rationale that even where the discovery sought is relevant to class certification (i.e., is appropriate initial stage discovery), it can be excessive and burdensome enough to warrant a directive that the requesting party share in (or bear entirely) the cost.

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