A Best Practices Guide to Help Practitioners Avoid a Court Order for Cost Shifting

In civil litigation, practitioners and courts honor the presumption that the responding party to a discovery request bears the cost of production (the“discovery presumption”). However, the prominence of electronically stored information in everyday life has significantly increased the costs of discovery. In turn, courts have begun to embrace the theory of cost shifting to protect parties from incurring an undue burden or expense when complying with discovery requests.

While cost shifting may protect a responding party from incurring exorbitant costs when responding to a discovery request, it leaves some practitioners without notice that they may be required to foot some of the e-discovery bill. To ensure that the discovery presumption remains intact and that cost shifting does not become a common practice, practitioners should employ certain procedural safeguards that may help them avoid a court order for cost shifting altogether.

The Sedona Conference, the Seventh Circuit, and Arizona have implemented procedural safeguards for practitioners to use to help navigate e-discovery and cost shifting. By taking the most efficient safeguards from each jurisdiction and combining them into aBest Practices Guide, this Note will provide practitioners with a practical set of tools that can help them decrease the costs of discovery and avoid a court order for cost shifting.