Archive: March 24, 2009

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Court Declines to “Overturn the Well-Settled Rule in New York” that the Party Seeking Discovery Bears the Cost
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Court’s Opinion a “Wake-Up Call” About the Need for Careful Deliberation and Cooperation in Crafting Search Terms

Court Declines to “Overturn the Well-Settled Rule in New York” that the Party Seeking Discovery Bears the Cost

T.A. Ahern Contractors Corp. v. Dormitory Auth. of State of N.Y., 875 N.Y.S.2d 862 (N.Y. Sup. Ct. 2009)

In this breach of contract action, both parties sought to compel the production of requested discovery.  Specifically, plaintiff sought to compel production of defendant’s project-related emails.  Defendant did not object to such production but, because of technological limitations, indicated the need to hire an outside vendor to assist in the production at an estimated cost of $35,000.  Defendant indicated it would begin the process of production, including hiring the vendor, upon plaintiff’s confirmation that it would bear the production costs.  Plaintiff took the position that defendant should bear the costs.  The court agreed with defendant and, citing the “well-settled rule in New York that the party seeking discovery bear the cost incurred in its production,” ordered plaintiff to bear the cost of defendant’s production.  Defendant was likewise ordered to bear plaintiff’s production costs.

Court’s Opinion a “Wake-Up Call” About the Need for Careful Deliberation and Cooperation in Crafting Search Terms

William A. Gross. Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. 2009)

This case arose from disputes over alleged defects and delay in the construction of the Bronx County Hall of Justice.  In the course of litigation, The Dormitory Authority of New York (“DASNY”) agreed to produce the relevant documents of the non-party construction manager, Hill International (“Hill”).  Disagreement arose amongst the parties, however, regarding appropriate search terms to segregate project related emails from Hill’s unrelated emails.  Hill, despite being in the best position to contribute, suggested no potential search terms and the court was forced into the “uncomfortable position” of crafting a search without adequate information.

Having been put in such a position, the court took its opportunity to write a brief opinion addressing the need for care and collaboration in crafting search terms in light of its assessment that “the message has not gotten through.”  First, the court presented an excerpt from an opinion of Magistrate Judge Paul Grimm, regarding the proper selection and implementation of terms:

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