In federal civil litigation, who pays for discovery costs comes down to a default rule with several moving parts: the party responding to a document request pays to produce the documents, the party noticing a deposition pays the court reporter, and the party who hires an expert pays that expert. Attorney’s fees stay with whoever’s lawyer did the work. Courts can shift those costs when a request is disproportionate, when a non-party is dragged in, or when someone abuses the process, and a prevailing party can recover a narrow slice of costs at the end.
The Default Allocation by Type of Discovery
Each category of discovery has its own cost-bearer under the Federal Rules of Civil Procedure, and the splits are not intuitive.
For document production, the responding party pays. When one side serves a request for emails, contracts, or financial records, the other side bears the expense of searching, reviewing for privilege, converting or copying files, and organizing the production. Attorney review time is part of that bill. This presumption has sat at the center of federal discovery practice for decades.
Depositions flip the arrangement. The party who schedules the deposition pays the court reporter’s appearance fee and the cost of the original transcript. If the other side wants its own copy, it pays for the copy. Video recording, when used, is also on the noticing party.
Expert witnesses follow the retaining party. A plaintiff who hires a forensic accountant pays that accountant’s hourly rate for record review, report drafting, and deposition testimony. The defense pays its own experts the same way.
Attorney’s fees sit in a separate universe. Under the American Rule, each side pays its own lawyers regardless of who wins. That principle is distinct from discovery cost allocation, though the two can intersect when a court sanctions misconduct.
What Discovery Actually Costs
The default rules matter more when you see the numbers behind them.
Court reporters charge by the page. Standard 30-day transcript delivery runs around $4.40 per page, next-day delivery about $7.30, and expedited two-hour turnaround roughly $8.70. A single full-day deposition can generate 200 or more transcript pages, which puts one deposition in the $900 to $1,500 range before video, exhibits, or copies for other parties.
Electronic discovery is where budgets break. According to a Winter 2026 industry survey, processing raw data at ingestion typically runs under $75 per gigabyte, though about a quarter of providers charge $100 or more per gigabyte at the completion stage. Hosting on a basic review platform averages under $10 per gigabyte per month, with analytics-enhanced hosting exceeding $25. The dominant cost is human review: managed-review attorneys cost $25 to $40 or more per hour, and per-document rates cluster around $0.50 to $1.00. AI-assisted tools bring per-document rates into the $0.10 to $0.50 range but add project management fees of $100 to $200 per hour. In a case with tens of thousands of documents, e-discovery alone can run into six figures.
Expert fees scale with specialty. Board-certified physicians serving as expert witnesses commonly charge $500 to $700 per hour, and highly specialized fields like neurosurgery reach $700 to $1,000. Total fees of $15,000 to $50,000 per expert are not unusual in complex cases, and non-medical experts such as accident reconstructionists and forensic accountants command similarly wide ranges.
Smaller costs add up too. Subpoena service runs $40 to $100 per serve. Bates stamping, copying, and scanning drive paper-case budgets. Motion filing fees stack up when disputes require judicial intervention.
When Courts Shift Costs to the Requesting Party
The defaults assume reasonable requests. When a request outruns the case, a judge can move the cost to the party doing the asking.
Proportionality Under Rule 26
Federal Rule of Civil Procedure 26(b)(1) limits discovery to information “relevant to any party’s claim or defense and proportional to the needs of the case.” The rule names the factors courts weigh:1Legal Information Institute. Federal Rules of Civil Procedure Rule 26 – Duty to Disclose; General Provisions Governing Discovery the importance of the issues at stake, the amount in controversy, the parties’ relative access to information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden outweighs the likely benefit.
A $50,000 contract dispute does not justify $200,000 in e-discovery. A small business facing demands from a Fortune 500 opponent gets more judicial sympathy. When a judge finds a request disproportionate, the remedies range from narrowing what must be produced to ordering the requesting party to pay some or all of the production costs. Cost-shifting is particularly common in e-discovery disputes where restoring archived data or searching backup tapes carries extreme price tags, and courts apply multi-factor tests that look at how tailored the request is, whether cheaper sources exist, and each party’s ability to control costs.
Protective Orders Under Rule 26(c)
A party staring down burdensome discovery can file a motion for a protective order under Rule 26(c), asking the court to shield it from “undue burden or expense.” The rule expressly authorizes judges to specify “the allocation of expenses” as a term of the order.1Legal Information Institute. Federal Rules of Civil Procedure Rule 26 – Duty to Disclose; General Provisions Governing Discovery The movant has to show the expense is genuinely unreasonable given the circumstances. Judges do not grant these motions automatically, and a party that waits too long or fails to quantify its costs will usually lose.
Costs When Non-Parties Are Subpoenaed
Discovery often reaches outside the lawsuit itself: banks, employers, hospitals, former employees. Non-parties get stronger cost protection than the actual litigants.
Federal Rule of Civil Procedure 45 requires anyone issuing a subpoena to “take reasonable steps to avoid imposing undue burden or expense” on the recipient.2Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena When a court modifies or quashes a subpoena, it must protect a non-party from “significant expense resulting from compliance.” The language is mandatory. A non-party that shows significant compliance costs is entitled to have those costs shifted to the party that issued the subpoena. What qualifies as “significant” depends on context, including the non-party’s size and resources.
Discovery Misconduct and Sanctions
Proportionality shifting is about fairness. Sanctions are about punishment. When a party or lawyer abuses discovery, Federal Rule of Civil Procedure 37 lets the court force them to pay the other side’s expenses.3Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
The most common trigger is a motion to compel. If one side refuses to produce documents or answer questions and the other side must ask the judge to force compliance, Rule 37 says the court “must” require the non-compliant party to pay the movant’s reasonable expenses, including attorney’s fees, unless the failure was substantially justified. That mandatory language is the point. Judges cannot skip the fee award unless a narrow exception applies.
Sanctions escalate when a party defies a court order. Consequences can include treating disputed facts as established against the defiant party, barring certain evidence, striking pleadings, or entering default judgment. Each carries its own mandatory fee-shifting provision.3Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
Spoliation of Electronic Evidence
Rule 37(e) handles destroyed or unpreserved electronic evidence. If electronically stored information that should have been preserved is lost because a party failed to take reasonable steps, the court can order measures to cure the resulting prejudice. When destruction was intentional, the penalties are far harsher. The court can instruct the jury to presume the lost evidence was unfavorable to the party that destroyed it, dismiss the case, or enter default judgment.3Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions Litigation hold notices telling employees to preserve data are not formalities. Ignoring one is among the costliest mistakes in civil litigation.
Recovering Discovery Costs After Winning
A party that wins the case can get some discovery costs back, but less than most people expect. Federal Rule of Civil Procedure 54(d)(1) creates a presumption that “costs — other than attorney’s fees — should be allowed to the prevailing party.”4Legal Information Institute. Federal Rules of Civil Procedure Rule 54 – Judgment; Costs Under 28 U.S.C. § 1920, only specific categories are taxable:5Office of the Law Revision Counsel. 28 U.S. Code 1920 – Taxation of Costs fees for printed or electronically recorded transcripts necessarily obtained for use in the case; witness fees and disbursements, generally capped at the modest statutory per-day amount rather than an expert’s full hourly rate; costs of copies necessarily obtained for use in the case; clerk and marshal fees including filing and service of process; and compensation for court-appointed experts and interpreters.
What is missing from that list matters. Attorney review time during discovery, e-discovery vendor hosting charges, project management fees, and the bulk of expert witness fees are generally not recoverable. The prevailing party has to show each claimed cost fits the statute and was “necessarily obtained for use in the case.” Deposition transcripts used at trial are usually recoverable; depositions taken purely for discovery that never surface at trial face a harder path. The winning party files a bill of costs with the court clerk, who can tax costs after giving the other side 14 days’ notice.4Legal Information Institute. Federal Rules of Civil Procedure Rule 54 – Judgment; Costs
Discovery Costs in Contingency Fee Cases
Plaintiffs in personal injury and similar matters often hire counsel on contingency, with the lawyer paid a percentage of any recovery. In these arrangements the firm typically advances discovery costs as they come due. The client does not write checks for deposition transcripts, expert fees, or e-discovery vendors mid-case.
Those costs are not forgiven. The agreement will specify repayment from the eventual settlement or judgment, and the mechanics vary. Some agreements calculate the attorney’s percentage on the gross recovery and then deduct costs from what remains. Others deduct costs first and calculate the percentage on the net amount. Before signing, confirm in writing whether the percentage comes off the gross or the net. If the case is lost, most contingency agreements waive the attorney’s time, but some still require repayment of advanced costs. That section of the contract deserves a careful read.