Cost Shifting – Page 11 – Electronic Discovery Law

Ingrid & Isabel, LLC v. Baby Be Mine, LLC, No. 13-cv-01806, 2014 WL 1338480 (N.D. Cal. Apr. 1, 2014)

Dec 01 2014

Key Insight: Court denied issue preclusion sanctions without prejudice, ordering defendants to pay monetary sanctions of $20,444, produce all hard drives and any other electronic storage media subject to court-approved protocol for inspection, and provide plaintiff’s experts with access to defendants’ various e-mail, Amazon, Twitter, Facebook and eBay accounts, in light of serious concern as to whether defendants met their discovery obligations and real danger that evidence may be destroyed

Nature of Case: Breach of settlement agreement resolving trademark infringement and unfair competition claims

Electronic Data Involved: Defendants’ hard drives and various e-mail, Amazon, Twitter, Facebook and eBay accounts

James v. UMG Recordings, Inc., No. 11-cv-01613-SI (MEJ), 2013 WL 5978322 (N.D. Cal. Nov. 8, 2013)

Dec 01 2013

Key Insight: Where plaintiffs could surely foresee the need to manipulate royalty data but did not specify production in electronic form, and defendant had already twice produced the documents and argued that production of electronically formatted royalty statements would require creation of new documents not currently in existence, court denied plaintiffs’ motion to compel production of the data in electronic format, stating that plaintiffs’ proffered justification that Excel format would be more convenient “falls far short of the mark”; court further denied plaintiffs’ request for receipts data, finding that the burden of reprogramming royalty database and creating new software to extract information far outweighed usefulness of ordering production given that plaintiffs stated they could discern the data by extrapolation

Nature of Case: Consolidated putative class action for breach of contract and other claims filed by recording artists and producers who alleged that defendant underpaid royalties on digital downloads of plaintiffs’ recordings

Electronic Data Involved: Royalty statements in Excel format, receipts from download transactions with vendors

D.G. ex rel Strickland v. Yarbrough, No. 08-CV-074-GKF-FHM, 2013 WL 1343151 (N.D. Okla. Mar. 31, 2013)

Dec 01 2013

Key Insight: Addressing magistrate judge?s recommendations on plaintiffs? Motion for Award of Class Counsel Fees and Expenses, the district court accepted the magistrate judge?s recommendation that plaintiffs be awarded out of pocket expenses related to data storage and hosting (of electronic discovery), with some reductions; district could did not accept recommendation that plaintiffs recover for attorneys fees related to ?temporary attorneys? who conducted review of emails where there was no description provided of the work performed and where the district court took issue with plaintiffs characterization of the time as an ?expense? ?[r]ather than properly documenting and describing the time expended by the[ ] temporary attorneys?

Nature of Case: Class action, recovery of attorneys fees pursuant to 42 USC ? 1988

Parsi v. Daioleslam, No. 08-705 (JDB), 2013 WL 1403226 (D.D.C. Apr. 8, 2013)

Dec 01 2013

Key Insight: Court addressed Defendant?s final bill of recoverable costs and request for reimbursement for expenses related to his prior motion for sanctions, including costs related to two rounds of forensic imaging by PricewaterhouseCoopers, and, after deducting and discounting certain costs, awarded recovery in the amount of $71,624.08 for the costs of imaging and related attorneys? fees

Electronic Data Involved: Costs related to forensic imaging

Thornton v. Morgan Stanley Smith Barney, LLC, No. 12-CV-298-JED-FHM, 2013 WL 1890706 (N.D. Okla. May 3, 2013)

Dec 01 2013

Key Insight: Where defendant sought to shift costs based on the expected expense of reviewing and producing the emails which was estimated to be more than $500,000, the court acknowledged that cost could be a legitimate basis for cost shifting under Rule 26(b)(2)(C), but found that the burden of the requested discovery did not outweigh its likely benefit and was not disproportionate to the case and also noted that the defendant had not established that ?a particular level of review is necessary in this case or that a ?claw back? agreement or [FRE] 502 order would not reduce or eliminate the estimated costs?

Electronic Data Involved: Email

Fair Hous. Ctr. of S.W. Mich. V. Hunt, No. 1:09-cv-593, 2013 WL 5719152 (W.D. Mich. Oct. 21, 2013)

Dec 01 2013

Key Insight: Ruling on plaintiffs? motion for taxation of attorney?s fees and costs, magistrate judge concluded that, although plaintiffs? counsel was entitled to award of fees, fee request was unreasonable in part because the hours devoted to the case were excessive; magistrate judge harshly criticized counsel?s ?unreasonable zeal? and ?single-minded focus? on discovery of ESI: ?The level of effort expended by plaintiffs? counsel to track down the last responsive e-mail . . . was not reasonable in this case. It appeared to this court on more than one occasion that plaintiffs were treating the case as a litigation workshop on discovery of ESI rather than a lawsuit. This case did not involve discovery of patent records contained in Ford Motor Company?s super-computers. Rather, the subject matter of the litigation was an apartment complex in Kalamazoo, run by a marginally competent apartment manager who used a desktop and a laptop. He was often in over his head, especially with regard to record-keeping and computer use. Ninety-nine out of 100 lawyers would never consider making this case the occasion for extensive discovery of electronic evidence. And no client paying his or her own bills would ever authorize such an expensive hunt for marginal evidence.?

Nature of Case: Housing discrimination

Electronic Data Involved: ESI, email

Lynch v. Math-U-See, Inc., No. 13cv402-GPC (WMc), 2013 WL 2444662 (S.D. Cal. June 4, 2013)

Dec 01 2013

Key Insight: Court declined to quash subpoena based on the burden of reviewing the requested emails prior to production where, because the request sought all messages to or from particular persons, the court determined that no review of the emails was necessary (that is to say, if the email was to or from one of the identified persons, it was responsive to the subpoena and thus subject to production regardless of content); because the movant was a non-party, however, the court indicated its inclination to set a reasonable cost of production, before production was complete, to prevent the responding party from manipulating production to increase the award and to streamline production and ordered the requesting party to pay the responding non-party $420.00 ?as reasonable compensation for compliance?

Electronic Data Involved: Emails

Ewald v. Royal Norwegian Embassy, No. 11-CV-2116 SRN/SER, 2013 WL 6094600 (D. Minn. Nov. 20, 2013)

Dec 01 2013

Key Insight: District court affirmed in part magistrate judge?s order (at 2013 WL 5687559) denying plaintiff?s request for forensic examination of laptop computers used by plaintiff during her employment, as defendant produced 56,625 pages of documents from most recently used laptop, and burden and expense of forensic examination of previous laptop outweighed its likely benefit, given that plaintiff did not assert even a belief that relevant information existed on that computer that was not produced from other sources; court reversed in part magistrate judge?s order denying access to text and voice messages, finding that plaintiff demonstrated that ?the scale tips in her favor? in regard to two mobile phones provided by defendant to plaintiff and another witness for work-related purposes, and ordering parties to meet and confer upon protocol to be used in conducting search for responsive text messages and voice messages contained on the two devices

Nature of Case: Employment discrimination

Electronic Data Involved: Work laptops, and text messages and voice messages on certain mobile devices

Novick v. AXA Network LLC, No. 07 Civ. 7767(AKH)(KNF), 2013 WL 5338427 (S.D.N.Y. Sept. 24, 2013)

Dec 01 2013

Key Insight: Conducting its cost-shifting analysis ?under the Zubulake standard,? court reasoned that defendants ?failed to show that cost-shifting is appropriate because they did not establish that the production at issue was unduly burdensome or expensive, that is, that the data were kept in an inaccessible format.?

Electronic Data Involved: Emails

IBM Corp. v. ACS Human Servs., LLC, 999 N.E.2d 880 (Ind. Ct. App. 2013)

Dec 01 2013

Key Insight: Trial court did not abuse its discretion when it awarded third party some, but not all, of its discovery costs under court rule where court awarded all costs of non-party?s e-discovery vendor ($355,329) and one-half of non-party?s costs for dedicated document review team ($354,070), basing the 50% reduction on non-party?s ?largely unexplained? delay in producing documents and principles of general equity; nor did trial court abuse its discretion when it awarded IBM $425,179 in sanctions against same third party representing some, but not all, attorneys? fees and other costs IBM incurred as a result of non-party?s failure to comply with discovery orders, as court had authority under court rules and its inherent power to issue sanctions against non-parties, non-party?s resistance to or failure to comply with discovery orders was not substantially justified and sanctions were not otherwise unjust, and non-party?s conduct was sanctionable as IBM filed multiple motions to compel, trial court found that non-party?s opposition was not reasonable, and trial court intervened numerous times in the discovery process to secure non-party?s compliance

Nature of Case: IBM and the State of Indiana filed lawsuits against one another related to the State’s Family and Social Services Administration modernization initiatives

Electronic Data Involved: ESI

Tag:Cost Shifting