Courts have the power to shift costs of discovery from responding to requesting parties, as a punitive measure or to achieve an equitable result. For lawyers obliged to advance litigationexpenses, the prospect of handing a blank check to the other side is so chilling it may force them to quit the case. That’s a powerful weapon, and one that might have gutted historic cases had they been brought in today’s world. "If you want the Board of Education’s e-mail, Mr. Brown, you’ll have to bear the cost of restoration."
Cost shifting is never more fraught with peril than when costs flow from electronic data discovery, because lawyers have proved themselves spectacularly profligate in their approach to digital evidence. Too often, they throw massive amounts of money at any task, in lieu of thought or skill, with much of that money gravitating to attorneys’ fees for review of items not requiring lawyers’ eyes.
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