Archive: July 4, 2017

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Lack of “Meaningful” Communication with Opposing Counsel, Client Results in “Overly Complex” and Burdensome Agreement; Partial Costs Shifted

Lack of “Meaningful” Communication with Opposing Counsel, Client Results in “Overly Complex” and Burdensome Agreement; Partial Costs Shifted

Bailey v. Brookdale Univ. Hosp. Med. Ctr., No. C 16-2195(ADS)(AKT), 2017 WL 2616957 (E.D.N.Y. June 16, 2017)

In this single-plaintiff employment litigation, Plaintiff claimed that the cost of production, equaling approximately $2,000-$3,000, was unduly burdensome in light of his personal financial situation, despite the existence of an ESI agreement between the parties, “so-ordered” by the court. Ultimately, the court concluded that although the data was not inaccessible, cost-shifting was appropriate because it appeared that the agreement proposed by the defendants was of a type “typically utilized in a more complex litigation involving multiple parties and corporate entities” and, more notably, because it appeared that Plaintiff’s counsel had not engaged in a “meaningful meet-and-confer session with opposing counsel concerning t[he] Agreement” or thoroughly reviewed the Agreement prior to signing it.  In addition to failing to properly confer with opposing counsel, the court concluded that “Plaintiff’s counsel did not engage in meaningful discussions with his client regarding the terms of the proposed agreement and what costs might be incurred . . . .”  Thus, absent any indication that Defendants would consider an alternative and less expensive form of production, the court ordered 40% of production costs shifted to Defendants and indicated that “fairness dictate[d]” that Plaintiff’s remaining costs “should be borne by Plaintiff’s counsel rather than Plaintiff himself.”

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