Cost Shifting – Page 25 – Electronic Discovery Law

Friedman v. Superior Court, 2006 WL 2497981 (Cal. Ct. App. Aug. 29, 2006) (Not Officially Published)

Dec 01 2006

Key Insight: Finding requests for production too broad and not reasonably particularized, appellate court concluded that trial court had erred in, among other things, not adequately resolving the question of how burdensome compliance with production requests would have proven to nonparties, where nonparties? counsel opined that it would take 5,260 hours to review email, at cost of $1,393,900, and requesting party?s expert estimated only 10 hours for such review; appellate court granted writ and vacated trial court’s orders

Nature of Case: Nonparties sought writ of mandate overturning trial court’s orders granting motion to compel depositions and production of documents pursuant to subpoenas

Electronic Data Involved: Email

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

Palgut v. City of Colo. Springs, 2006 WL 3483442 (D. Colo. Nov. 29, 2006)

Dec 01 2006

Key Insight: This order constitutes the parties? stipulated Electronic Discovery Plan and Order to Preserve Evidence, which includes definitions of various terms and sets out a number of discovery ?protocols?

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

C.H. Robinson Worldwide, Inc. v. Thorp, 2006 WL 3300396 (W.D. Wash. Nov. 14, 2006)

Dec 01 2006

Key Insight: Preliminary injunction ordered former employee to return customer information to plaintiff and to make available all personal computing devices in his home for inspection and review by an expert hired by plaintiff at plaintiff’s expense

Nature of Case: Misappropriation of trade secrets and breach of contract

Electronic Data Involved: Spreadsheets and home computing devices

Etzion v. Etzion, 796 N.Y.S.2d 844 (N.Y. Sup. Ct. 2005)

Dec 01 2005

Key Insight: Where husband consented to discovery of financial matters but resisted plaintiff’s broad request for access to all documents on all computers, court set out detailed protocol for the copying and review of computer data with oversight by court-appointed referee

Nature of Case: Divorce proceeding

Electronic Data Involved: Data on hard drives

Fryer v. Brown, 2005 WL 1677940 (W.D. Wash. July 15, 2005)

Dec 01 2005

Key Insight: Noting that a responding party “must cover the costs of gathering the requested item; not to cover the costs of reproduction absent a showing of good cause as to why the burden should be shifted,” court instructed plaintiff to provide hard copies of its website as defendant had requested, at defendant’s expense

Nature of Case: Copyright and trademark infringement

Electronic Data Involved: Website pages

Okoumou v. Safe Horizon, 2005 WL 2431674 (S.D.N.Y. Sept. 30, 2005)

Dec 01 2005

Key Insight: Although plaintiff was free to pursue discovery of archived emails on obsolete email system, the extent to which those emails were discoverable and the allocation of costs to restore them would require further analysis; court directed plaintiff to notify the court if she intended to pursue the archived email

Nature of Case: Wrongful termination

Electronic Data Involved: Archived email from obsolete email system

In re Natural Gas Commodity Litig., 2005 WL 3036505 (S.D.N.Y. Nov. 14, 2005)

Dec 01 2005

Key Insight: Court narrowed scope of subpoena and ordered plaintiff and third party to negotiate a reasonable “sample” protocol and search protocol to expedite production, limit the burden and perhaps develop information to return to court to refine the court’s ruling

Nature of Case: Securities class action

Electronic Data Involved: Spreadsheets

Tag:Cost Shifting