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Cost-shifting in E-discovery: Options and Opportunities

July 16, 2014

Reprinted with permission from the July 14, 2014 edition of the Corporate Counsel © 2014 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 - or visit

It is no secret that e-discovery costs can account for a substantial portion of a company’s costs to defend a lawsuit. According to one study, e-discovery costs alone can account for as much as 90 percent of litigation costs. Another study indicates that e-discovery costs for a typical midsize lawsuit run about $3.5 million.

With costs of this magnitude, it's also not surprising that cost-shifting is an important subject for inhouse counsel in charge of e-discovery. There are two routes defendants typically pursue to recoup e-discovery costs: via the federal rules while litigation is pending, and via 28 USC §1920 postjudgment.