Each e-discovery development pushes the legal system further into the digital frontier, and cost-shifting is the latest topic at the helm. As every lawyer in America knows, the default rule of attorney fees is that each party must bear all of its own litigation costs, regardless of the outcome of the case. But, in our expanding world of big data, and as judges begin to confront the increasing expense of producing electronically stored information (ESI), that rule is necessarily evolving toward a new paradigm based on cost-shifting.
To understand why cost-shifting has become an important topic in the legal world requires a bit of background. In today’s digital landscape, litigants must cope with seemingly limitless amounts of data during the discovery process, which can quickly dry up even the biggest of legal war chests. One of the more visible and important decisions that helped begin to change the direction of the burden of costs for discovery was Zubulake. In that case, the court used its discretion, supported by Rule 26(c), to have the requesting party pay – at least in part – the cost of the discovery as it resulted in some level of “undue burden or expense” for the defendants.
