Update (January 30, 2019): In the dispute about “susceptor food packaging” or “SFP,” described below, Plaintiff Inline Packaging (“Inline”) appears to have gotten a butt-kicking (pending appeal) (link is to the U.S. District Court’s grant of the summary judgment motion of Defendant Graphic Packaging International “Graphic”).
Now Graphic seeks $304,930.89 in costs, the vast bulk of which—$226,137.53—is for costs related to its e-discovery platform, Integreon Discovery Solutions. (Here is Inline’s opposition to being saddled with these substantial costs.)
As readers can see in the earlier post below, it seems that Inline pushed Graphic hard during discovery and now, victorious, Graphic naturally wants to be reimbursed.
Whether e-discovery costs are included in recoverable (“taxable”) costs is an unsettled business about which we’ve posted before. So, are these costs taxable or not and why does it seem difficult for the U.S. District Court for the District of Minnesota to issue clear guidance or all be on the same page?
It seems to us that this is a decision that has to be tailored case by case.
Often, one side or the other bears more responsibility for the high cost of e-discovery and it may or may not be the “prevailing party.” If a party is BOTH the prevailing party AND the victim of the other side’s hyper-zealous e-discovery, it was seem obvious it should recover its e-discovery costs in their entirety. By the same token, if a prevailing party chased its own tail or self-imposed a particularly onerous e-discovery burden, it would seem obvious that it should not get a penny for its self-inflicted wound.
Finally, interesting practical considerations: (1) large law firms have e-discovery capabilities in-house. Smaller firms cannot. To what extent does disallowing the recoverability of e-discovery costs fall particularly hard on smaller firm clients (i.e., often smaller business or individuals)? (2) should “ability to pay” be a consideration un imposing e-discovery costs as “taxable costs”? Little Guy v. Corporation litigation will very likely include asymmetric e-discovery costs and impositing e-discovery costs in cases like that could be financially devastating to Little Guy (or be a “rounding error” for Corporation, on the other hand).