Cost Shifting – Page 20 – Electronic Discovery Law

D.G ex rel. Stricklin v. Henry, 2009 WL 455266 (N.D. Okla. Feb. 20, 2009)

Dec 01 2009

Key Insight: Court granted plaintiff?s motion seeking production of emails from particular custodians and rejected defendant?s argument that cost of production should be shifted where defendants did not challenge the relevance of the emails at issue, where plaintiff?s ?reasonably limited their request to avoid undue burden? to defendants, and where the court?s consideration of the Zubulake factors resulted in a determination that cost shifting was not appropriate

Nature of Case: Class action against DSHS

Electronic Data Involved: Emails

CBT Flint Partners, LLC v. Return Path, Inc., 2009 WL 5159761 (N.D. Ga. Dec. 30, 2009)

Dec 01 2009

Key Insight: Recognizing a ?division of opinion? as to whether e-discovery vendor costs are recoverable, court called the ?highly technical? services provided by the e-discovery vendor the ?21st century equivalent of making copies,? noted that ?taxation of these costs will encourage litigants to exercise restraint in burdening the opposing party with the huge cost of unlimited demand for electronic discovery? and overruled and denied plaintiff?s objection to taxation as costs of the e-discovery consultant?s fees; Summary judgment reversed and costs vacated in CBT Flint Partners, LLC v. Return Path, Inc., Nos. 1010-1201, 2010-1203, 2011 WL 3487023 (Fed. Cir. Aug. 10, 2011)

Nature of Case: Patent Infringement

Electronic Data Involved: ESI

Orbit One Commc?ns, Inc. v. Numerex Corp., 2009 WL 799975 (E.D. La. Mar. 20, 2009)

Dec 01 2009

Key Insight: Court ordered plaintiffs to bear cost of non-party?s production in response to plaintiffs? subpoena where Fed. R. Civ. P. 45 provides for protection of a non-party from undue burden or expense and where the court found the non-party?s expenditure of $6,000 to respond ?significant?; court?s analysis also noted the parties? failure to fix production costs in advance, as discussed in the Advisory Committee Notes, and plaintiffs? awareness of the possibility that the non-party would request reimbursement

Nature of Case: Breach of contract

Electronic Data Involved: ESI

Union Ins. Co. v. Delta Casket Co. Inc., 06-2090, 2009 WL 10665127 (W.D. Tenn., Dec. 1, 2009)

Dec 01 2009

Key Insight: Court granted Plaintiff?s motion that Defendants bear the costs Plaintiff incurred in producing archived emails, implicated by Defendant?s 30(b)(6) notice. The notice came after a year and a half of discovery and one month before the discovery deadline. Plaintiff was required to use a third party to conduct the search, put the retrieved emails on discs, send them to a copy service to convert to TIFF files and print them so Plaintiff?s counsel could review for relevancy and privilege. Plaintiff spent approximately $35,000 on this process. The Court held that Plaintiff?s Motion was timely and Defendants had notice before the emails were produced that Plaintiff was seeking costs, Plaintiff met its burden of showing the cost and burden incurred were undue and conversion of the discs to TIFF format was necessary in order for Plaintiff?s counsel to review the emails prior to production.

Nature of Case: Insurance indemnification

Electronic Data Involved: Archived email

Adele S.R.L. v. Filene?s Basement, Inc., 2009 WL 855955 (S.D.N.Y. Mar. 24, 2009)

Dec 01 2009

Key Insight: Finding that defendants? first, second, and third productions were ?patently inadequate? and that ?representations by defendants and their attorneys as to the completeness of production were false,? court concluded plaintiffs had incurred some expense as a result of defendants? discovery behavior and that ?the required expenditure of funds to pursue discovery is prejudice enough to justify cost-shifting?; addressing plaintiffs? specific request to shift costs related to the search of back-up tapes resisted by defendants, court declined to shift costs where plaintiffs had not proposed an electronic discovery plan at the outset of litigation and where plaintiffs failed to meaningfully address Fed. R. Civ. P. 26(b)(2) in their briefing

Nature of Case: Trademark infringement

Electronic Data Involved: ESI, database information, back up tapes

Robert v. Bd. of County Comm?rs of Brown Count, Kan., 2009 WL 1362530 (D. Kan. May 14, 2009)

Dec 01 2009

Key Insight: Where defendants could not produce a requested email because of damage to author?s and recipient?s computers but where defendants undertook significant effort to search for the email, including a search by the county?s Information Technology Director and inquiry to the County?s email provider about the email?s availability, and where defendant offered to make the author?s computer available for inspection at plaintiff?s expense, court declined plaintiff?s request to ?shift the cost of an independent computer expert? to defendants and denied plaintiff?s motion to compel production of the email

Electronic Data Involved: Email

Surplus Source Group, LLC v. Mid-Am. Engine, 2009 WL 961207 (E.D. Tex. Apr. 8, 2009)

Dec 01 2009

Key Insight: Where the need for a third search of defendants? electronically stored information resulted from plaintiffs? delay in providing search terms, court ordered defendants to undertake third search, using terms provided by plaintiffs, but ordered plaintiffs to bear the cost of the third search, up to the amount equal to the second search, reasoning that such an order would essentially result in plaintiffs bearing the cost of the second search which was insufficient because of their delay

Nature of Case: Claims arising from defendants? alleged failure to split profits from sales of industrial equipment

Electronic Data Involved: ESI

Dahl v. Bain Capital Partners, LLC 2009 WL 1748526 (D. Mass. June 22, 2009)

Dec 01 2009

Key Insight: Briefly but comprehensively addressing a number of electronic discovery issues, court declined to shift discovery costs to the requesting party, declined to order defendants to bear the cost of changing the format of their responsive documents for production (unless such conversion was necessary to render the documents ?usable?), declined to order the production of all metadata and instead limited production to 12 fields of metadata proposed by plaintiffs, and ordered the production of spreadsheets and privilege logs in native format

Electronic Data Involved: ESI, metadata

In re Application of Michael Wilson & Partners, Ltd., 2009 WL 119374 (D. Colo. Apr. 30, 2009)

Dec 01 2009

Key Insight: Reasoning that electronic storage devices ?perform the same function as did a file cabinet in the pre-electronic era? and that they must therefore be searched ?just as they would have had to do had all the information been printed out and stored in hard copy format? and also reasoning that ?[t]he fact that duplicate documents may have been stored and maintained in more than one place is irrelevant to the duty to search all locations,? court ordered respondents to subpoenas to conduct additional searches of all electronic storage devices in their possession at the time of their response; where the sharing of production costs had been ordered, court required requesting party to post $1 million pre-judgment cost bond in light of the ?circumstances of the case? including respondents? expenditure of more than $2.5 million and fears that the requesting party would dispute their share and attempt to avoid payment

Nature of Case: Litigation between an international law firm and a new firm comprised of its former employees related to the new firm?s alleged interference in business relationships and breach of certain duties

Electronic Data Involved: ESI

Dawe v. Corrections, USA, 2009 WL 3233883 (E.D. Colo. Oct. 1, 2009)

Dec 01 2009

Key Insight: Citing a ?pervasive? level of ?distrust that permeates this litigation? and plaintiff?s ?adamant refusal to permit even a limited inspection? and citing defendants? representations that additional, relevant information remained on the laptop and that the laptop had been ?forensically cleaned,? court granted defendants? motion to compel inspection of plaintiff?s laptop but ordered defendants to bear the cost – if inspection revealed relevant information was withheld, court invited a motion to shift some or all of the costs to plaintiff(s)

Electronic Data Involved: ESI, laptop

Tag:Cost Shifting