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
Key Insight: Where questions remained as to whether plaintiff deleted files from his work laptop in bad faith before returning it, whether defendant suffered any prejudice as a result and whether the information sought to be forensically retrieved was likely to be of any substantial benefit, court denied defendant?s motion to compel restoration of the laptop at plaintiff?s expense, but concluded that defendant could retrieve the information at its own costs if it so chose
Nature of Case: Claims alleging failure to pay bonus payment
Electronic Data Involved: ESI
Key Insight: Appellate court affirmed lower court?s order that shifted defendant?s costs related to the production and review of electronic discovery subject to plaintiff?s motion to compel where defendant provided ?specific facts? presented in an affidavit of its IT personnel that demonstrated that the ?electronic documents requested by CNX created an undue burden because those documents required an additional review to prevent the disclosure of privileged information? and where it was within the trial court?s discretion to ?tailor? the discovery requests, including by shifting costs
Nature of Case: Suit arising from dispute related to oil and gas leases
Electronic Data Involved: ESI
Key Insight: Where plaintiff sought reimbursement of the costs of producing ESI from backup tapes but did not seek judicial intervention to narrow the requests prior to production, court considered eight factors and ruled that plaintiff and defendants should split the costs; the eight factors considered were: 1) the likelihood of discovering critical information; 2) the availability of such information from other sources; 3) the amount in controversy as compared to the total cost of production; 4) the parties’ resources as compared to the total cost of production; 5) the relative ability of each party to control costs and its incentive to do so; 6) the importance of the issues at stake in the litigation; 7) the importance of the requested discovery in resolving the issues at stake in the litigation; and 8) the relative benefits to the parties of obtaining the information.
Nature of Case: Legal malpractice
Electronic Data Involved: ESI on backup tapes
Key Insight: Where defendant failed to conduct a sufficient search for responsive information and where an important email was located only upon a forensic search of defendant?s computer system after plaintiff offered to bear the costs, court ordered that half of the costs of the search be shifted to defendant
Nature of Case: Breach of warranty and violations of certain state law proscriptions against consumer fraud in connection with sale of motorcoach
Electronic Data Involved: Email
Key Insight: Court found backup tapes not reasonably accessible in light of the cost of restoration, review and production but granted plaintiff?s motion to compel where plaintiff?s showed ?good cause for some discovery? and held the motion in abeyance until further argument on cost-shifting
Nature of Case: Products liability
Electronic Data Involved: Backup tapes
Key Insight: Court denied motion to compel production of database data in native format where the same information had been produced in PDF format, where there were no accusations of inconsistencies in the information provided, where neither party addressed the costs of the requested native production and where the native data sought could not be provided without also disclosing irrelevant confidential information
Nature of Case: Breach of contract
Electronic Data Involved: Database
Key Insight: Court denied plaintiff?s motion to compel additional discovery, including ?sweeping searches of ESI using suggested search terms? where, following significant analysis of the rule of proportionality (26(b)(2)(C)), the court determined that the ?minimally relevant information to be developed through the discovery? was ?far outweighed by the burden? associated with it, but left open plaintiff?s option to bear the cost of the discovery himself
Nature of Case: Violations of Fair Debt Collection Practices Act
Electronic Data Involved: ESI
Key Insight: Court granted certiorari review and quashed order for plaintiff to pay half the cost of inspection of its own computers where the court reasoned that ?[t]o place a substantial financial burden on a party relating to the production of its adversary?s discovery request does nothing more than require a party to fund its adversaries litigation? and where the order was ?unreasonable and unduly oppressive and [wa]s a departure from the essential requirements of the law.?
Nature of Case: Interference with business relationship
Electronic Data Involved: Computer inspection
Key Insight: After defendant reported that the estimated cost of searching its electronically stored information using the search terms provided by plaintiff would be ?at least $54,000? because of the need to hire an outside contractor to assist, the court found that the discovery requests imposed a burden on the defendant that warranted cost shifting and ordered the parties to met and confer to determine an appropriate cost sharing agreement; Reconsideration denied in Couch v. Wan, No. CV F 08-1621 LJO DLB, 2011 WL 291118 (E.D. Cal. July 20, 2011)
Nature of Case: Violations of their free speech rights and violations of the Racketeer Influenced Corrupt Organizations Act (“RICO”)
Electronic Data Involved: ESI
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