Cost Shifting – Page 24 – Electronic Discovery Law

Thielen v. Buongiorno USA, Inc., 2007 WL 465680 (W.D. Mich. Feb. 8, 2007)

Dec 01 2007

Key Insight: Court granted defendant’s motion to compel forensic inspection of plaintiff’s computer and defendant’s sole expense, but limited the scope of the inspection to determining whether, during the relevant time period, plaintiff accessed defendant’s website or a website which advertised defendant’s services, what interaction plaintiff had with such websites and what, if any, information concerning those internet transactions was subsequently deleted

Nature of Case: Cellular phone user alleged that defendant violated the Telephone Consumer Protection Act of 1991 by sending text messages to plaintiff’s cell phone without his permission

Electronic Data Involved: Plaintiff’s computer hard drive

Autotech Techs. Ltd. P?ship v. Automationdirect.com, Inc., 2007 WL 2746650 (N.D. Ill. Sept. 17, 2007)

Dec 01 2007

Key Insight: Where defendant argued that extracting requested information regarding 56,000 to 60,000 customer invoices from computer system would cost as much as $80,000, and alternative method for extracting information proposed by plaintiff was unsuccessful, court held parties to their prior agreement and determined that reasonable allocation was for plaintiff to pay 62 percent and defendant to pay the remainder; court further ordered defendant to provide proof of actual cost and proof of actual payment and stated that, if defendant is able to extract information for less than $80,000 or if parties arrive at different cost-shifting formula, that will control

Nature of Case: Trademark infringement

Electronic Data Involved: Customer information stored in database

Io Group, Inc. v. Veoh Networks, Inc., 2007 WL 1113800 (N.D. Cal. Apr. 13, 2007)

Dec 01 2007

Key Insight: Court granted plaintiff’s motion to compel and denied defendant’s request to shift costs of production to plaintiff, since defendant provided no information about whether and how such information was “inaccessible” or any other information relevant to cost-shifting determination under Zubulake III; court encouraged parties to agree on most efficient means of production and noted that plaintiff had indicated willingness to provide high capacity storage devices

Nature of Case: Copyright infringement

Electronic Data Involved: Adult video content; website traffic information

O’Bar v. Lowe’s Home Centers, Inc., 2007 WL 1299180 (W.D.N.C. May 2, 2007)

Key Insight: Court ordered parties to develop joint precertification discovery plan and articulated detailed guidelines for discovery of ESI adapted from the ?Suggested Protocol for Discovery of Electronically Stored Information? set forth by the United States District Court for the District of Maryland

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

Paul v. USIS Commercial Servs., Inc.Slip Copy, 2007 WL 2727222 (D. Colo. Sept. 17, 2007)

Dec 01 2007

Key Insight: Court denied defendant?s post-trial motion for reimbursement of $292,000 incurred to preserve large volume of ESI as demanded by plaintiff at outset of litigation, finding that plaintiffs? demand, while arguably unreasonable, was not so abusive as to warrant sanctions; court noted that, where plaintiff demanded preservation of huge amounts of ESI and parties were not able to agree on narrowed scope of information to be preserved, defendant, ?like all parties, was left to make a reasonable judgment about what information must be preserved?

Nature of Case: Putative class action under Fair Credit Reporting Act

Electronic Data Involved: Information in all databases maintained by defendant, any and all e-mail, and other broad categories of information

Nat?l Union Fire Ins. Co. of Pittsburgh v. Clearwater Ins. Co., 2007 WL 2106098 (S.D.N.Y. July 21. 2007)

Dec 01 2007

Key Insight: Court denied motion to compel production of email from 113 backup tapes, estimated to cost between $45,200 and $79,100, plus attorney’s time in reviewing documents, since defendant had not sufficiently demonstrated that responsive emails relating to settlement negotiations existed on the backup tapes, which covered time periods that were months after the settlement was reached; court noted that if moving party wished to pay to restore the backup tapes, it may do so

Nature of Case: Insurance coverage

Electronic Data Involved: Email stored on backup tapes

In re Seroquel Prods. Liab. Litig., 2007 WL 4287676 (M.D. Fla. Dec. 6, 2007)

Dec 01 2007

Key Insight: Court rejected non-party’s claim that it was entitled to recover full amount of fees expended to retrieve, identify and review 25 project files sought by plaintiffs (estimated to be $28,950, including $18,750 in attorneys fees for 50 hours of review), since non-party should have reasonably anticipated being involved in the discovery process of subsequent litigation concerning the marketing/prescribing behavior it studied, the cost could be borne by the non-party as overhead, and cost was less than four fifths (4/5) of one percent of the revenue the non-party generated from work on Seroquel products

Nature of Case: Drug product liability class action

Electronic Data Involved: 25 electronically-maintained project files relating to market research that non-party Harris performed on behalf of AstraZeneca with respect to Seroquel

Delta Fin. Corp. v. Morrison, 819 N.Y.S.2d 908 (N.Y. Sup. Ct. 2006)

Dec 01 2006

Key Insight: Court ordered party to conduct additional searches of data restored from backup tapes, and to restore and search a sample of additional backup tapes, shifting all initial costs to the requesting party; court further directed producing party to prepare an affidavit detailing the number of responsive documents found and the costs and expenses associated with the processes, including but not limited to attorneys fees for privilege review, which would assist the court in determining whether a full search would be necessary and whether further cost-shifting was warranted

Nature of Case: Fraud and breach of contract claims

Electronic Data Involved: Email and non-email electronic documents restored from backup tapes

Yancey v. GMC, 2006 WL 2045894 (N.D. Ohio June 26, 2006)

Dec 01 2006

Key Insight: Court ordered GM to produce “Kentucky Firefighter” and “Dancing Granny” emails if said emails can currently be found on GM’s email system, but GM would not be required to retrieve the emails from outside sources if they were not in GM’s possession; court further ordered that GM produce at its own expense the hard drives of various GM employees requested by plaintiff

Nature of Case: Employment discrimination

Electronic Data Involved: Email and hard drives

Quinby v. WestLB AG, 245 F.R.D. 94 (S.D.N.Y. 2006)

Dec 01 2006

Key Insight: Court applied Zubulake factors and granted in part defendant?s motion to shift costs, holding that defendant was entitled to recover 30 percent of the costs of restoring and searching backup tapes for responsive emails of one former employee, stating: “[I]f a party creates its own burden or expense by converting into an inaccessible format data that it should have reasonably foreseen would be discoverable material at a time when it should have anticipated litigation, then it should not be entitled to shift the costs of restoring and searching the data.”

Nature of Case: Gender discrimination

Electronic Data Involved: Email stored on backup tapes

Tag:Cost Shifting