Although litigation has always been expensive, the substantial costs of e-discovery have only made matters worse. The potential for a prevailing party to recover costs arising from e-discovery therefore has assumed increasing importance. In a recent article, we wrote about what seemed to be an emerging consensus that much of e-discovery was analogous to physical reproduction of documents and, as a result, should be deemed a recoverable cost under 28 U.S.C. §1920.1 But the U.S. Court of Appeals for the Third Circuit has now reversed that decision in substantial part, even as courts elsewhere have embraced its logic. This article is intended to serve as an update in this rapidly changing area of e-discovery law.
As discussed in our prior column on this subject, a party who wishes to recover its e-discovery costs must establish that the costs it hopes to recover fall within the ambit of 28 U.S.C. §1920. That section permits recovery of “[f]ees 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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