“Winning isn’t everything, it’s the only thing” – Examining the new trend towards big e-discovery cost awards for winners

http://ow.ly/74aEw

An article by Ralph Losey on his blog e-Discovery Team.

The article touches on a rising trend of costs being awarded to the prevailing party, for eDiscovery services after the conclusion of case.

As the author points out, "It is now sweeter than ever to be a victor in federal court. That’s because of the hot new trend to award winners their e-discovery costs under 28 U.S.C. §1920(4) and Rule 54(d)(1) FRCP. Courts are now beginning to consider the services of an e-discovery vendor as “the 21st Century equivalent of making copies.” CBT Flint Partners, LLC v. Return Path, Inc., 676 F.Supp.2d 1376, 1381 (N.D. Ga. 2009)."

This is a detailed article that quotes several cases, and is certainly worth reading if you are encouraged, or worried, about this developing trend.

The author points out, "It is instructive to see what was allowed, and what wasn’t, in the big cost awards case of In re Aspartame Antitrust Litigation, (Citation provided in the article). The vendor costs award included fees associated with:

1. data recovery,
2. tape restoration,
3. imaging hard drives,
4. storage of data,
5. deduplication,
6. data extraction and processing,
7. OCR’ing paper documents,
8. the creation of a litigation database,
9. keyword searches,
10. privilege screening (i.e., keywords for privileged documents),
11. data hosting,
12. technical support,
13. project management, and
14. the production costs for the creation of load files allowing documents saved as TIFFs to be loaded into review platforms."

Mr. Losey's article provides links to cases that he discusses, as well as a link to an article by Craig Ball, that is referenced. Mr. Losey states, "A big cost award is still a long shot, even if you are a winner. But your team worked hard to get there and you should go for it."