Court Orders Plaintiff to Pay $6.2 Million for Production from Defendant’s Backup Tapes

Murphy Oil USA, Inc. v. Fluor Daniel, Inc., 2002 WL 246439, 52 Fed.R.Serv.3d 168 (E.D. La. 2002)

Plaintiff sought the production of email from 93 backup tapes. Defendant offered expert testimony that the process would cost over $6.2 million and take over six months to retrieve the material, not including the time required to review the material for responsiveness and privilege. 2002 WL 246439, at *2.

Plaintiff offered no expert testimony on the subject. The court concluded that, in the absence of any evidence from the plaintiff, it must accept the defendant’s estimate. Id. at *6. Applying the eight-factor test used in Rowe Entm’t, Inc. v. The William Morris Agency, Inc., 205 F.R.D. 421 (S.D.N.Y. 2002), the court ruled that the magnitude of the expense, considered with other factors, weighed in favor of shifting the cost of the discovery to the plaintiff.

Interesting, the two alternative protocols set by the court required that the recovered email be produced in hard copy form with Bates numbers. Id. at *8-9. There was no argument or discussion about whether production ought to be in electronic form.

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