When a court imposes or shifts the costs associated with legal compliance from one party to another. A good example of cost shifting occurs with electronic evidence and electronic discovery compliance. The general presumption under the Federal Rules of Civil Procedure is that the party responding to a request for electronic discovery will bear the costs of compliance with the request. (A receiving party receives a subpoena to provide e-mails to the requesting party.) However, a court can shift the costs associated with the electronic discovery request from the receiving party to the requesting party if the discovery does not pass the Federal Rule Federal Rule 26(b)(2) proportionality test (which includes the “Zubulake Factors“).
See also “fee shifting“.