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eDiscovery News

Legal intelligence key to recovering eDiscovery costs

February 15, 2012

As the amount of data stored on corporate servers continues to grow, so to have the costs associated with retrieving that information for eDiscovery requests. Although the burden of these expenses will remain primarily with the company reproducing its proprietary materials, a thorough knowledge of related legislation could help prevailing parties recover a portion of those costs.

According to New York Law Journal contributors Christopher Boehning and Daniel Toal, Rule 54(d) of the Federal Rules of Civil Procedure has been expanded in recent years to encompass the cost associated with making copies of any materials, digital or otherwise. To take advantage of this provision, however, certain conditions must apply. The litigants seeking compensation must be the prevailing party in the case and must reasonably demonstrate that the eDiscovery costs incurred were directly relevant to trial proceedings.

"Although these elements provide a useful analytical framework, they provide an uncertain guide as to how courts will actually rule on requests to recovery eDiscovery costs," Boehning and Toal explained in their latest column. "Indeed, courts frequently come to inconsistent conclusions regarding seemingly similar requests for costs."

According to the Legal Intelligencer, one of the most important precedents in this area was set in an antitrust case involving multiple manufacturers of aspartame sweeteners. Although the controversy at hand concerned a small niche industry, the outcome may have significant consequences. In the court's decision, the costs associated with everything from hosting electronic data and conducting keyword searches to restoring data and seeking external technical support were all in some way added to the defendant's bill.

But although this decision has opened the door to a whole new wave of eDiscovery possibilities, it was by no means a definitive verdict. According to the news source, the expense of eDiscovery software was deemed irrelevant and unrecoverable in the case, highlighting the subjective nature of rulings.