Archive: June 26, 2009

1
You Get What You Pay For: Court Allows Access to Defendant’s Relevant Backup Tapes and Email Archives provided Plaintiff is Willing to Bear the Costs
2
Court Orders Producing Party to Bear the Cost of Production but Not Conversion where Documents are Produced as Ordinarily Maintained, Declines to Compel Production of All Metadata

You Get What You Pay For: Court Allows Access to Defendant’s Relevant Backup Tapes and Email Archives provided Plaintiff is Willing to Bear the Costs

Kilpatrick v. Breg, Inc., 2009 WL 1764829 (S.D. Fla. June 22, 2009)

This case arose from plaintiff’s claim that defendant’s product caused plaintiff to develop a degenerative cartilage condition (chondrolysis), that defendant was aware of the risk of such a condition, and that defendant is therefore liable for plaintiff’s damages resulting from the condition.  In the course of discovery, plaintiff became concerned that defendant’s production of electronic discovery was incomplete and filed a motion to compel.  Acknowledging the validity of plaintiff’s concern but noting the unlikely possibility that any material new documents were located in defendant’s email archives or on disaster recovery tapes, the court concluded that plaintiff may, but was not required to, hire an outside vendor “for the purpose of confirming the completeness of [defendant’s] production, at is own expense” subject to specific conditions enumerated by the court.

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Court Orders Producing Party to Bear the Cost of Production but Not Conversion where Documents are Produced as Ordinarily Maintained, Declines to Compel Production of All Metadata

Dahl v. Bain Capital Partners, LLC, 2009 WL 1748526 (D. Mass. June 22, 2009)

In a comprehensive yet brief opinion, the court addressed several issues including the cost of conversion and production of electronically stored information (“ESI”) and the production of metadata, among other things.

Specifically, noting that “courts will rarely shift costs to the requesting party and this is not one of those exceptional circumstances,” the court declined to shift the cost of defendants’ production of electronically stored information (“ESI”) but held that defendants would not have to pay to change the format of their responsive documents and that plaintiffs would bear the cost for such modification, if desired.  In support of its holding, the court reasoned:

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