Cost Shifting – Page 10 – Electronic Discovery Law

Cochran v. Caldera Med., Inc., No. 12-5109, 2014 WL 1608664 (E.D. Pa. Apr. 22, 2014)

Dec 01 2014

Key Insight: In case where defendant represented that it was currently defending approximately 1,709 claims nationwide involving its various products, and that it had limited financial resources, court denied defendant’s request that plaintiffs share in the cost of producing documents and ESI as defendant did not demonstrate that ESI sought by plaintiffs was inaccessible; court further noted that, given the importance of the discovery requests to plaintiffs’ ability to prove their claims, and the seriousness of the injuries alleged by plaintiffs, the burden or expense of the discovery requests was outweighed by the likely benefit to plaintiffs

Nature of Case: Product liability re implantable surgical meshes

Electronic Data Involved: ESI, text messages, voicemail messages

FDIC v. Bowden, No. CV413-245, 2014 WL 2548137 (S.D. Ga. June 6, 2014)

Dec 01 2014

Key Insight: Where FDIC spent $614,000 to digitally scan about 2.01 terabytes of data or 153.6 million pages of documents after taking over failing bank, and before any written document requests were served, court evaluated parties? competing proposals for conducting e-discovery, discussed the governing standards for manner of document production, formatting issues, and cost-shifting for digital format conversion expenses, and ultimately approved protocol offered by FDIC; court further instructed that, in the event of any further ESI-protocol disagreement or objection to the court?s decision, the parties must first confer and attempt to craft a joint ESI protocol or consent order in light of the principles highlighted in the court?s ruling

Nature of Case: Bank receiver brought bank mismanagement case against 16 of bank’s former directors and officers

Electronic Data Involved: Records of failed bank

Oleksy v. Gen. Elec. Co., No. 6 C 1245, 2014 WL 3820352 (N.D. Ill. Aug. 1, 2014)

Dec 01 2014

Key Insight: Where, at time complaint was filed, defendant should have reasonably foreseen that files created by its accused process would be material to the parties’ claims, yet defendant continued to overwrite its files per its standard practice instead of saving the files either manually or automatically, court denied plaintiff’s request for adverse inference instruction but ordered defendant to reconstitute or recreate three complete sequences of old computer code at its own cost

Nature of Case: Patent infringement

Electronic Data Involved: Computer code

Black & Veatch Corp. v. Aspen Ins. (UK) Ltd., No. 12-2350-SAC, 2014 WL 806122 (D. Kan. Feb. 28, 2014)

Dec 01 2014

Key Insight: Court denied in most respects plaintiff’s motion for protective order, finding that plaintiff’s undue burden and expense arguments were unsupported and conclusory; court further denied plaintiff’s alternative proposal to shift some of the uncalculated ESI costs onto defendants as plaintiff failed to show that the disputed ESI production was inaccessible because of undue burden or cost, and because other relevant factors did not weigh in plaintiff’s favor; court further denied plaintiff?s request for a discovery conference or appointment of an ESI master, and ordered the parties to meet and confer regarding the proper method to search custodian hard drives, and suggested the parties consider a clawback provision specifically for ESI harvested after running the parties? respective search terms

Nature of Case: Insurance coverage dispute

Electronic Data Involved: ESI in databases and stored on custodian hard drives

Apple Inc. v. Samsung Elecs. Co., No. 11-CV-01846-LHK, 2014 WL 4745933 (N.D. Cal. Sep. 19, 2014)

Dec 01 2014

Key Insight: Trial court considered parties? respective objections to clerk?s taxation of costs and further reduced Apple?s costs award; among other things, trial court rejected Apple?s argument that it was entitled to recover e-discovery costs incurred in processing all documents collected for review, whether or not they were all produced, and instead reduced award to approximate amount Apple spent on documents that were actually produced to Samsung; as Apple estimated it uploaded a total of 18,264,712 pages in the litigation, of which 2,944,467 pages were ultimately produced, court calculated that approximately 16.12% of Apple?s e-discovery costs were spent on documents produced to Samsung and awarded Apple $238,103 for e-discovery costs

Nature of Case: Patent infringement

Electronic Data Involved: ESI

Green v. Am. Modern Home Ins. Co., No. 1:14-cv-04074, 2014 WL 6668422 (W.D. Ark. Nov. 24, 2014)

Dec 01 2014

Key Insight: Court granted parties’ Joint Motion for Entry of Agreed Order Establishing Protocol for Production of Electronically Stored Information, which addressed search terms, production format, and various other e-discovery matters

Nature of Case: Insurance coverage

Electronic Data Involved: ESI

Spears v. First Am. eAppraiseit, No. 5-08-CV-00868-RMW, 2014 WL 6901808 (N.D. Cal. Dec. 8, 2014)

Dec 01 2014

Key Insight: Non-party JPMorgan Chase Bank moved for an order compelling Plaintiffs to reimburse Chase over $450,000 in costs for producing over 334,000 pages of documents. Chase sought reimbursement under FRCP 45(d)(2)(b)(ii); Plaintiffs argued Chase could not recover costs unless the production resulted from a court order. The Court found that a court order is not required to shift costs and that costs may be shifted under Rule 45(d)(2)(B)(ii) if the requesting party is on notice that the non-party will seek reimbursement of costs. The Court ultimately denied Chase?s motion, stating ?it would be unfair?to reimburse Chase for costs?where Chase failed to inform plaintiffs it would later seek reimbursement??

Nature of Case: RESPA class action

Electronic Data Involved: ESI

Stewart v. Continental Cas. Ins. Co., No. 12-005320KD-B, 2014 WL 12600282 (S.D. Ala. Jan. 1, 2014)

Dec 01 2014

Key Insight: Where responding party claimed that cloning and searching the hard drives from ?old computers? changed out in 2010 would cost more than $13,000 and submitted the affidavit of its CEO in support of its claim that the information was not reasonably accessible, the court reasoned it was ?not clear? that the ESI was not reasonably accessible or that the cost outweighed the ?importance and usefulness of the emails? and ordered the responding party to make arrangements for a forensic search of the CEO?s old hard drive which ?should yield representative information regarding the accessibility of the requested emails, the probability of locating the emails, the usefulness of the emails, the actual cost likely to be incurred for a search of all of the old computer hard drives at issue?; court also denied cost-shifting request ?at this time?

Nature of Case: Insurance

Electronic Data Involved: Emails on old computer hard drives

Bradfield v. Mid-Continent Cas. Co., No. 5:13-cf-222-Oc-10PRL, 2014 WL 4626864 (M.D. Fla. Sep. 15, 2014)

Dec 01 2014

Key Insight: Where plaintiffs? law firm experienced severe power surge that damaged server and firm engaged IT expert who made good faith effort to restore and obtain all data on firm?s computer system, including data responsive to defendant?s document requests, court found that plaintiffs had met their burden of showing that additional ESI was not reasonably accessible because of undue burden or cost, and further determined that circumstances did not warrant forensic examination of firm?s computer system as defendant failed to show good cause for the examination and could not demonstrate that the likely benefit of the discovery sought outweighed the significant burden and expense, considering the importance of the issues at stake and notwithstanding defendant?s offer to bear the financial cost of the forensic examination

Nature of Case: Insurance coverage dispute

Siltronic Corp. v. Employers Ins. Co. of Wausau, No. 3:11-cv-1493-ST, 2014 WL 991822 (D. Or. Mar. 13, 2014)

Dec 01 2014

Key Insight: After non-party produced responsive documents and sought reimbursement of $17,298 from defendant, court found that that hourly rate of $65 to $160 to search and copy documents was ?inherently unreasonable? and could not be justified, and invoices were vague and included entries for internal communications and meetings and time for senior scientists “to stand around the copier and copy documents”; court ruled that the defendant’s prior payment of $5,670 — about one-third of the total charge — was a reasonable amount, and that non-party must either absorb or charge the plaintiff for the remainder of its cost to comply with subpoena

Electronic Data Involved: Non-party documents relating to or arising out of specific invoices

Tag:Cost Shifting