E-Discovery Expenses Taxable in Florida

Last month, The Supreme Court of Florida adopted amendments to the Uniform Guidelines on the Taxation of Costs effective January 1, 2014 that specifically allow successful litigants to recover certain “Electronic Discovery Expenses.” Specifically, two categories of taxable e-Discovery costs may now be considered: (1) The cost of producing copies of relevant electronic media in response to a discovery request; and (2) The cost of converting ESI or electronically stored information to a reasonably usable format in response to a discovery request that seeks production in such format. The amendments were drafted by the standing Florida Civil Rules Committee which voted 28-0-1 to add provisions to Florida’s Rules of Civil Procedure to allow for the taxation ESI costs, consistent with cost shifting post-trial and recent federal case law awarding costs pursuant to 28 USC § 1920 - Taxation of Costs. My experience has been that under the old uniform guidelines, trial courts only award a modicum of expenses in traditional categories and that the ability to shift costs associated with electronic discovery during post-trial proceedings will be similarly narrow. Perhaps parties would do better to focus their cost-shifting efforts earlier in discovery during litigation, rather than wait until after trial to litigate the issue-- even when parties believe that they will prevail on the merits. Counsel would do well to keep accurate and detailed records of ESI costs if they wish to recoup significant vendor related discovery costs later. See court opinion amending civil rules here-- http://www.floridasupremecourt.org/decisions/2013/sc13-74.pdf

ESI as Taxable Cost in Florida?

The Florida Bar's Civil Procedure Rules Standing Committee has responded to comments on its proposed three-year cycle amendments to the Florida Rules of Civil Procedure. Included in these is an amendment to the Statewide Uniform Guidelines for the Taxation of Costs to include electronically stored information or ESI, as has been previously incorporated into existing language in Florida's Rules of Civil Procedure. In federal court, prevailing litigants can seek reimbursement of certain e-discovery expenses as taxable costs under Federal Rule of Civil Procedure 54(d)(1) and 28 U.S.C. § 1920(4). Litigants taxing e-discovery costs have done so with some success. Fed. R. Civ. P. 54(d)(1) allows prevailing parties to recover certain costs and expenses incurred during litigation. Under Rule 54, if a substantiated bill of costs is sent to the clerk, there is a presumption that recovery is proper. However, courts still maintain discretion to reduce any award.  Federal case law suggests 28 U.S.C. § 1920(4) should be used to allow a party to shift the entirety of the costs associate with e-discovery. Last year, Florida's out-of-cycle amendments to the Rules of Civil Procedure regarding discovery of electronically stored information (ESI) went into effect. See In re: Amendments to the Florida Rules of Civil Procedure – Electronic Discovery, 95 So. 3d 76 (Fla. 2012). During the development of our rule changes, my subcommittee on e-discovery rules discussed the subjects of cost-shifting and taxation of costs for production of ESI. Among the considerations were whether the amendments should also contain changes to the Statewide Uniform Guidelines for the Taxation of Costs in Civil Actions. The Florida Supreme Court has previously directed that the Uniform Guidelines be reviewed periodically by the Civil Rules Committee for future revision as needed to improve the ability of trial judges to administer taxing of costs. They also announced a recent policy of discouraging excessive e-discovery and preventing the inclusion of unnecessary ESI in court files. See In re Amendments to Fla. Rule of Judicial Admin. 2.420, 31 So. 3d 756 (Fla. 2011).  No opinion on the latest changes has been released. See additional proposed amendments here: http://www.floridasupremecourt.org/clerk/comments/2013/13-74_Petition_ada.pdf