The amendments to the Federal Rules of Civil Procedure (FRCP) clarify that discovery is limited to proportionality, which includes considering the importance of the issues at stake, the amount in controversy, parties’ resources and “whether the burden or expense of the proposed discovery outweighs its likely benefit.” But the FRCP and amendments do not expressly direct the recovery of e-discovery costs from winners to the losers.
Federal Rule of Civil Procedure 54(d) provides that costs, other than attorney’s fees, should be allowed to the prevailing party. Under the rule, e-discovery costs may be taxed upon a losing party if the costs fit within the confines of 28 U.S.C. sec. 1920(4), which allows for the recovery of “fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case.”
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