Recent decisions, such as Race Tires America v. Hoosier Racing Tires, a 2011 case in the U.S. District Court for the Western District of Pennsylvania holding that 18 U.S.C. §1920 allows the prevailing party to recover from the losing party the costs of e-discovery processing and production, can be one important factor in influencing requesting parties to agree to limit the scope of e-discovery requests (and so control the costs they made be ordered to pay under Section 1920 should they not prevail). The recent opinion in Couch v. Wan, a 2011 U.S. District Court case for the Eastern District of California, introduces or, better yet, reminds us of another factor that may influence future discovery requestors: cost-shifting.
While cost-shifting has been a factor in e-discovery since courts began looking at e-discovery in earnest, Couch‘s application of the doctrine to a rather pedestrian set of facts raises the issue of whether cost-shifting will be more widely applied to situations where, previously, it had not been.
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