E-discovery has evolved into an integral component of the litigation process. With vast amounts of electronic data available, expenses associated with e-discovery can be substantial. In federal courts, the presumption is that the responding party is responsible for bearing the costs associated with discovery requests, including those related to electronic discovery. However, there are avenues through which parties can seek recovery of e-discovery expenses. Parties should understand the basis upon which courts will allow recovery of these costs and establish reasonable limits on the scope of discovery at the beginning of the litigation process. This proactive approach will allow litigants to manage and control the financial aspects of e-discovery more effectively.

The general rule is that a party producing documents pays the cost of production. However, an exception to this rule exists. Federal Rule of Civil Procedure Rule 26(c) provides parties with the possibility of cost-shifting during the course of litigation. In 2015, Rule 26 was amended to include a key change to 26(c)(1)(B). The amendment expressly confirmed the authority of federal courts to shift costs to protect parties from undue burden or expense. The advisory committee note accompanying the amendment clarified that the purpose of the change was "'to include an express recognition of protective orders that allocate expenses for disclosure or discovery' to 'forestall the temptation that some parties may feel to contest' a court's authority to issue such orders." It is important to note, however, that the advisory committee also cautioned against making cost-shifting a routine practice, emphasizing the need for restraint in its application.