Curbing Abusive Discovery by Including Certain E-Discovery Related Costs to the List of Taxable Costs in 28 U.S.C. § 1920

This article argues that discovery requests are susceptible to waste and abuse due to the moral hazard inherent to a producer pays system, and that one approach to solving these problems would be to include certain e-discovery related costs to the list of taxable costs contained in 28 U.S.C. § 1920. Adding e-discovery related costs (excluding attorney related fees) to the list of taxable cost in § 1920 would help to curb overbroad discovery request and act as a deterrent to discovery requests that are primarily calculated to drive up litigation expenses. By aligning transaction costs with the requesting party, the requesting party is more likely to make a request in which “the burden or expense of the proposed discovery outweighs its likely benefit.” This article discusses some of the issues involved in using a taxable cost approach, namely balancing the efficiencies and cost savings produced by aligning the costs of production with the requesting party against keeping courts accessible to indigent plaintiffs. This paper ends by proposing a model amendment that incorporates the Electronic Discovery Reference Model (EDRM) and discusses how such a rule might be applied in practice.