Cost-Shifting in Electronic Discovery

Abstract

Rapid growth in the creation and retention of electronically stored information (ESI) has revealed fundamental inequities in the traditional allocation of discovery costs. While cost shifting has always been an option for a judge seeking to limit overly aggressive or intrusive discovery requests, no generally applicable framework for determining when cost shifting is appropriate has yet emerged. In 2006, the Federal Rules of Civil Procedure were amended in an attempt to more explicitly account for the peculiarities of the discovery of ESI and to unify the various district court approaches. However, due to the close relationship of the cost-shifting test embedded in the 2006 amendments and the leading doctrines in case law, courts have continued to apply prior case law directly, occasionally alongside or within the amendment framework. While the leading doctrine in the case law bears a structural similarity to the test proposed in the notes accompanying the 2006 amendments, the two tests are distinct and have different implications for the substantive protections afforded to responding parties. The tendency of courts to apply the tests interchangeably has undermined the development of a unified nationwide approach to cost shifting in electronic discovery.