Cost Shifting – Page 15 – Electronic Discovery Law

Adair v. EQT Prod. Co., No. 1:10cv00037, 2012 WL 1965880 (W.D. Va. May 31, 2012)

Dec 01 2012

Key Insight: Considering the burden of production and the court?s ability to relieve it, the court held that consideration of the cost of review alone, related to otherwise accessible data, can be considered in deciding whether discovery imposes an undue burden or cost and may form the basis for a court?s decision to shift costs; court noted in this case, though, that a protective order and clawback agreement combined with a proposal to preclude production of any documents to or from in-house or outside counsel precluded defendant’s need to conduct a expensive privilege review and ordered production in accordance with the court?s order; affirmed with minor modifications 2012 WL 2526982

Electronic Data Involved: Esi

Vietnam Veterans of Am. v. Central Intelligence Agency, No. 09-cv-0037 CW (JSC), 2012 WL 2375490 (N.D. Cal. June 22, 2012)

Dec 01 2012

Key Insight: In dispute over 24 40-year old magnetic tapes, 6 of which defendants had attempted to restore with only partial success (contents of 2 of the 6 tapes were recovered), the court found the information on the tapes to be not reasonably accessible in light of the significant but only partially successful recovery efforts but, recognizing the potential relevance of the contents, ordered that plaintiff would be allowed to attempt recovery (using outside vendors with sufficient security clearance) at their own expense and that if recovery was successful, the court would consider a cost-shifting motion

Electronic Data Involved: 40-year old magnetic tapes

In re Application of Wilson & Partners, No. 06-cv-02575-MKS-KMT, 2012 WL 1901217 (D. Colo. May 24, 2012)

Dec 01 2012

Key Insight: Court found that third party failed to establish the reasonableness or necessity of attorney?s fees related to setting up a database to assist in production, including dealing with administrator of that database and thus upheld recommendation against recovery of attorney?s fees; court affirmed recommendation against recovery of costs related to manual review and production that resulted from abandonment of the document database (because of problems with the database) where the Magistrate Judge determined the review was an ?unnecessarily incurred expense, which [the requesting party] had no ability to control or contain;? court adopted recommendation ordering that third party respondents be responsible for half the cost of the database

Gray v. Novell, Inc., No. 8:06-CV-1950-T-33TGW, 2012 WL 3886026 (M.D. Fla. Sept. 6, 2012)

Dec 01 2012

Key Insight: Where defendant failed to explain why conversion and printing of all of plaintiff?s electronically produced discovery was necessary, court declined to allow defendant to recover those costs

Electronic Data Involved: Costs related to printing of ESI

Hanwha Azdel, Inc. v. C&D Zodiac, Inc., No. 6:12-cv-00023, 2012 WL 6726412 (W.D. Va. Dec. 27, 2012)

Dec 01 2012

Key Insight: Where Defendant produced forty gigabytes of material on a single memory stick organized into folders by search term, with no other organization by custodian or otherwise, court noted that ?[o]rganizing a production to reflect how the information is kept ?in the usual course of business? sometimes requires the producing party to include different identifying information according to the type of document or file produced,? and that ?[e]mails specifically are produced in the usual course of business when responsive emails are arranged ?by custodian, in chronological order and with attachments, if any?? and found that the production was not in an appropriate format in this case; court ordered Defendant to bear the costs to convert the ESI into a readily usable format (estimated to be $8,463.00)

Electronic Data Involved: ESI

Cannata v. Wyndham Worldwide Corp., No. 2:10-cv-00068-PMP-VCF, 2012 WL 528224 (D. Nev. Feb. 17, 2012)

Dec 01 2012

Key Insight: Where parties could not agree on search protocol, including the number of custodians and number of search terms and whether ?terms of a sexual nature? should be included as search terms, the court appointed a special master to resolve the dispute, split the costs of the special master (unevenly) between the parties, and ordered that if the number of terms and custodians combined exceeded 40, plaintiff would reimburse 5% of defendant?s e-Discovery compliance costs for each occurrence (e.g., if the final search involved 22 custodians and 25 sites, plaintiffs would be responsible for 25% of defendants? cost [7 x 5%]); because sexual harassment related claims were at issue, ?ESI containing sexual terms is discoverable?

Nature of Case: Sexual harassment, sexual discrimination, hostile work environment

Electronic Data Involved: ESI

Pouncil v. Branch Law Firm, No. 10-1314-JTM-DJW, 2012 WL 777500 (D. Kan. Mar. 7, 2012)

Dec 01 2012

Key Insight: Where evidence indicated that defendant?s responses to discovery were incomplete, court ordered defendant to ?proceed with the forensic search of their computer systems using protocols agreed upon by the parties? but declined to compel defendant to bear the cost of the examination until final costs were known; defendant was also ordered to institute a litigation hold where defendant?s deposition testimony established that none had previously been issued

Nature of Case: Malpractice

Electronic Data Involved: ESI

Rawal v. United Air Lines Inc., No. 07 C 5561, 2012 WL 581146 (N.D. Ill. Feb. 22, 2012)

Dec 01 2012

Key Insight: Court sustained objections to taxation of costs related to processing email accounts and other files into searchable format where the services were performed by the ?litigation support department? of defendant?s outside counsel and went ?far beyond the mere reproduction or exemplification of documents? and instead comprised the ?kind of work conventionally performed by attorneys and paralegals, the costs of which are not recoverable?

Nature of Case: Discrimination and retaliation

In re Subpoena to Creeden & Assocs., No. 12C 5573, 2012 WL 4580841 (N.D. Ill. Sept. 28, 2012)

Dec 01 2012

Key Insight: Addressing plaintiff?s motion to enforce a subpoena, the court focused on the issue of the burden to the third party and granted plaintiff?s motion as to the requests for production with some limitations and also conducted an 8-part cost shifting analysis which resulted in the court?s order that plaintiff was to bear 60 of the third party?s ?staff research and production costs? and 30 of the third party?s ?legal costs?; court indicated that the ?lower legal percentage [was] a reflection of what the Court believe[d] was [the third-party?s] recalcitrance to meaningfully participate in legal negotiations concerning discovery thus far? and that ?[t]he lower legal fee-shifting amount is also an attempt to get [the third party] to object only to those points it really cares about?

Nature of Case: Antitrust

Miami-Dade Cnty. v. Johnson Controls, Inc., No. 10-20881-CIV, 2011 WL 1548969 (S.D. Fla. Apr. 21, 2011)

Dec 01 2011

Key Insight: Where 3rd party established the burden of responding to defendant?s subpoena, including that compliance would result in a total cost of approximately $118,000, the court ordered defendant to bear the reasonable cost of the 3rd party?s compliance with the subpoena, subject to the conditions set forth by the court

Nature of Case: Breach of contract

Electronic Data Involved: ESI

Tag:Cost Shifting