Cost Shifting – Page 21 – Electronic Discovery Law

Major Tours, Inc. v. Colorel, 2009 WL 3446761 (D.N.J. Oct. 20, 2009)

Dec 01 2009

Key Insight: Court granted protective order precluding obligation to search archived emails or emails stored on backup tapes where such emails were ?not reasonably accessible? in light of the estimated $1.5 million retrieval costs and because backup tapes are generally considered inaccessible, and where plaintiffs failed to establish good cause for such production; where defendant offered a ?scaled back alternative,? court ordered parties to split the cost of retrieving emails from a particular subset of backup tapes and provided plaintiffs the opportunity to compel searches of an additional subset of tapes – at their expense – including the cost of review

Nature of Case: Allegations of discriminatory safety inspections of African American owned buses en route to Atlantic City

Electronic Data Involved: Backup tapes, email

In re McKesson Governmental Entities Average Wholesale Price Litig., 2009 WL 3706898 (N.D. Cal. Nov. 4, 2009)

Dec 01 2009

Key Insight: Where government agency objected to defendants? subpoena for the production of documents previously produced in a separate litigation on grounds of undue burden and cost based on the assertion that it needed to re-review all documents prior to production because some documents were subject to the deliberative process privilege and others were highly confidential, court held that the privilege had been waived by the agency?s failure to object in its initial response and by the production in separate litigation, ordered the documents produced under the POD ?Confidential, For Outside Attorney Eyes Only? and ordered defendants to bear the costs ?of copying and producing the documents in electronic form?

Nature of Case: Allegations that defendants artificially increased the published price of prescription drugs

Electronic Data Involved: ESI previously produced in separate litigation and maintained in database by third party

In re Nuvaring Prod. Liab. Litig., 2009 WL 2486330 (E.D. Mo. Aug. 11, 2009)

Dec 01 2009

Key Insight: Court denied defendants? motion for cost sharing for their review and production of electronically stored information where the parties had implicitly agreed to be responsible for their own expenses, where plaintiffs already took steps to eliminate the cost to defendants of repeatedly producing documents, and where defendants failed to establish that plaintiffs? request had caused undue burden or expense or that they would in future; court instructed defendants to file motions for protective orders specifically identifying the requests creating the burden and expense to allow the court to address the objections

Nature of Case: Products liability

Electronic Data Involved: ESI

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

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

Fells v. Virginia Dept. of Transp., 605 F. Supp. 2d 740 (E.D. Va. Mar. 25, 2009)

Dec 01 2009

Key Insight: Identifying a difference between costs expended for converting a paper document into an electronic one and creating electronically searchable documents, the court denied defendant?s request for recovery of costs related to ?electronic records initial processing, Metadata extraction, [and] file conversion?

Nature of Case: Employment litigation

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

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

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

United Consumers Club, Inc. v. Prime Time Mktg. Mgmt., Inc., 2009 WL 3200540 (N.D. Ind. Sept. 25, 2009)

Dec 01 2009

Key Insight: Where request for production was unduly burdensome in light of the cost of production and necessary labor to comply, despite the requesting party?s attempt to narrow the scope, and where the court found the request overly broad and that it sought information irrelevant to the litigation, court declined to compel production in response to the particular request, but granted in part other portions of the motion to compel

Electronic Data Involved: ESI

Tag:Cost Shifting