E-discovery is a costly necessity of modern litigation. With the ease of email and network data-storage came a deluge of litigation expenses. But producing parties, who historically have born the majority of these costs, may now find some relief in Rule 54(d) of the Federal Rules of Civil Procedure.
Rule 54(d) provides that “costs — other than attorney’s fees — should be allowed to the prevailing party.” The awardable or “taxable” costs are listed in 28 U.S.C. §1920, and include “[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case.” At first glance, this provision might not seem to encompass e-discovery costs. Since an amendment in 2008 that replaced the word “papers” with “any materials,” however, courts uniformly have concluded that §1920 covers at least some e-discovery costs.[FOOTNOTE 1]
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