After you celebrate your win in federal court, as the prevailing party, you will likely turn your attention to the bill of costs. In the age of electronic discovery, a large majority of your client’s costs may have been incurred to recover and produce electronically stored information. In fact, your opponent may have used e-discovery as a weapon throughout the litigation to extract a settlement.
But what if both parties knew the court could award e-discovery costs to the prevailing party? In this case, it is likely both parties would exercise restraint in making unlimited demands for ESI and willingly cooperate to minimize e-discovery costs. Or, both parties may be more apt to enter into a cost allocation agreement from the outset.
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