Be Careful What You Ask for: Loser Pays Prevailing Party Electronic Discovery Costs (Again)

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Following on the heels of Race Tires II,[1] which awarded electronic discovery costs in favor of the prevailing party, several recent awards suggest that when deciding whether to pursue litigation, parties should take into consideration the costs of electronic discovery -- and the discovery methods used -- as courts are increasingly taxing nonprevailing parties for the costs of electronic discovery.

Recently, courts in California and Pennsylvania found that the prevailing party can recover electronic discovery costs under Federal Rule of Civil Procedure 54. The types of costs awarded under Rule 54 depend upon a court's interpretation of 28 U.S.C. § 1920(4), which lists "fees for exemplification and the cost of making copies of any materials where the copies are necessarily obtained for use in the case," as taxable, or recoverable, costs. In each of the four cases below, the court found that electronic discovery costs related to the duplication and production of data in discovery were recoverable.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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