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Litigants Beware: Create Reasonable Document Requests or Else You Might Be Paying for it in the Future

Created on December 8, 2011

Vice President, E-Discovery


In legal discovery, document requests have been used as a weapon to drive up costs and/or prevent parties from pursuing further litigation. Fortunately, the ruling in Race Tires II, which awarded e-discovery costs for the prevailing party, has sent the message that those who practice such an approach are to be punished by the courts.

Under FRCP 54(d)(1), “costs – other than attorney's fees – should be allowed to the prevailing party." To break down this rule:

  • Costs = “the fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case." 28 U.S.C. § 1920(4)
  • Prevailing party = the party who prevails in “the substantial part of the litigation."

In Glenn Tibble et al v. Edison International et al., the U.S. District Court for the Central District of California clarified Rule 54 and reinforced the Race Tires II ruling, by awarding electronic discovery costs of $530,000 to the prevailing party, defendant Edison. In this case, the plaintiff, Tibble, used a “shotgun" approach for discovery, “submitting aggressive discovery requests and asserting numerous non-meritorious claims." This included 28 production requests of active, deleted and fragmented electronic media, amounting to 537,955 pages of electronic documents.

In order to adequately fulfill the requests, Edison sought costs for “utilizing the expertise of computer technicians in unearthing the vast amount of computerized data sought by Plaintiffs in discovery." Tibble countered that these e-discovery costs were not covered under §1920(4). The court disagreed, stating that Edison's cost were not “merely for the convenience of counsel," but were necessary in “responding to Platinffs' discovery requests." To back up its reasoning, the court cited three previous cases (listed below) where e-discovery costs were deemed recoverable under §1920(4).

  • BDT Products Inc. v. Lexmark Intern., Inc. (6th Cir. 2005)
  • CBT Flint Partners, LLC v. Return Path, Inc. (N.D. Ga. 2009) 500
  • Race Tires Am., Inc. v. Hoosier Racing Tire Corp. (W.D. Pa. 2011) 404

Cases like Tibble, should impel parties to create a reasonable, focused production request. When devising a tailored production request, here are a couple tips to consider:

  1. Be Proactive: Conduct a cost/benefit analysis before Meet and Confer which takes into account the potential costs and benefits of litigation.
  2. Cooperate: Work with opposing counsel to create a discovery plan that puts parameters on where and what data is preserved and collected.
  3. Target Essential Information: Limit requests to the essential information you need to effectively litigate your case. You always can file additional production requests if you find that the prior request did not surface what you were looking for.
  4. Track Costs: Monitor and track expenditures throughout the discovery process so that you can immediately ask for discovery costs if you are the prevailing party and back the request up with quantifiable data.

Mike Hamilton, J.D. is the E-Discovery Market Analyst at Exterro, Inc. Hamilton works in a product

management and marketing role to ensure Exterro's Fusion e-discovery applications closely reflect the needs of legal teams. Within the complex e-discovery world, Hamilton's knowledge, legal acumen and experience give him a valuable perspective on bridging the gap between IT and legal teams.