Plaintiffs Ordered to Pay Winning Party’s E-Discovery Bill: A Growing Trend?

Plaintiffs Ordered to Pay Winning Party’s E-Discovery Bill: A Growing Trend?

A main concern with e-discovery is cost. Those unaccustomed to this growing trend feel uneasy about the amount of money involved in e-discovery. Without knowledge of early case assessment tools and processing technologies that can reduce the volume of documents to be reviewed, e-discovery costs can seem monstrous. In dealing with the increase in discovery costs, the issue of who will pay has become a key point.. In the Race Tires America v. Hoosier Racing Tires case, the judge ordered the reimbursement of the winning party’s e-discovery costs by the losing plaintiff under Section 1920(4) of the US Code Title 28.

An audio clip, available from the ACEDS, provides Ervin Gonzalez’s opinion on the decision. Gonzales is, according to the interviewer, “one of leading plaintiff attorneys in the country and an ACEDS advisory board member.” When asked his opinions of the judge’s order for the plaintiff to pay the defendant’s $367,000 electronic discovery bill, Gonzales stated it was “very well reasoned” and is a “part of reality now, part of the litigation process.” He continued, “Courts have always awarded reasonable expenses related to litigation, how can anyone exclude electronic discovery in this day and age?” Since the decision was based on a Section that typically refers to paper, the interviewer asked if it was limited in application. Gonzales replied, “It’s consistent with where the courts have been going.”

Another interesting point from the interview:

Interviewer: You’ve taken on some very high profile cases, what would your advice be to parties who kind of want to take on a big boy but are afraid of getting stuck with the cost?

Gonzalez: Well, you have to plan. There’s no way around it. The reality is that heavy-duty litigations…are going to require a lot of money….You’ve got to look for efficient and effective way of being able to categorize the discovery and be able to use it in a way that is meaningful to you. Otherwise your opponent can bury you….

If the Courts are moving in the direction of mandating the losing party pay the opposing party’s e-discovery costs, we may see both parties have more of a vested interest in making better use of the tools available in the collection, processing and review of data to be as efficient as possible.

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