The costs of eDiscovery continue to be a critical concern of clients and their litigation counsel. Even with cost-shifting provisions in federal and state rules, substantial eDiscovery costs continue to fall heavily on producing parties — often defendants in complex litigation — and can rise to a level that impacts both pre-trial and settlement strategy.

While not explicitly referencing this concern, a growing number of federal courts have begun to permit prevailing parties to tax the losing party for certain eDiscovery costs. Adding considerable weight to this trend, on October 5, 2011, the District Court for the Eastern District of Pennsylvania predominantly affirmed the Clerk of Court’s award of substantial eDiscovery costs to the prevailing defendants. In re Aspartame Antitrust Litigation, No. 2:06-cv-01732-LDD.

Taxation of eDiscovery costs provides litigants another avenue by which to seek to shift or recover eDiscovery costs in litigation. Indeed, the award in In re Aspartame should give pause to litigants who request broad and burdensome eDiscovery without regard to the attendant costs.

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